MULHOLLAND v. HEYNEMAN et al.

MULHOLLAND v. HEYNEMAN et al. An order of the Court below, refusing to set aside a judgment, on the ground of inadvertence, surprise or excusable neglect of the attorney in the case, affirmed on the authority of Haight v. Green, ante. See facts. Appeal from the Twelfth District. The facts of the case appear in the opinion of the Court below, denying the application to set aside the judgment, which is as follows: “ When the cause was on the day calendar for trial, both parties, by their attorneys, -were in attendance at Court, waiting the termination of a case then on trial. Defendant’s attorney spoke to the counsel in the cause on trial, and was informed that the cause would occupy till the usual recess. He also spoke to the plaintiff’s attorney, and told him that he wished to leave the Court for a short time ; and was informed by the plaintiff’s attorney that the plaintiff was ready for trial, and if the defendant’s attorney left, it would be at his own risk. The defendant’s attorney then left the Court to attend to some private business of his own, first directing his son to remain in Court, and to come for him (defendant’s attorney) immediately on the close of the evidence in the case on trial. The son, at the conclusion of the evidence in the case on trial, endeavored to find the attorney, but failed to do so in time, not having gone to the place where his father instructed him he would be found. The action was tried in the absence of defendant’s attorney, and a verdict rendered for plaintiff. “ Defendant now appears on affidavits, which, with the counter affidavits of plaintiff, show the above facts, and a- general affidavit of merits to set aside the verdict and judgment rendered herein, and for leave to come in on a new trial. “ I do not think the whole affidavits show such surprise, inadvertence or excusable neglect as would justify setting aside the verdict. “ The Court waited some time for defendant’s attorney, and sent an officer to his office for him, but he could not be found. “ The case of Fowler v. Collyer (2 E. D. Smith Rep.) bears strongly on this. “ The motion is dismissed.” B. S. Brooks, for Appellants, cited Sedgw. Const. and Stat. Const. 438 ; Mayor of New York v. Furze, 3 Hill, 612, and cases there cited. Tompkins & Compton, for Respondent, cited Haight v. Green, ante ; Fowler v. Collyer, 2 E. D. Smith, 125 ; Mulhom v. Hyde, 3 Id. ; Bruge v. Baker, 4 Abb. 11. [MAJORITY — Cope, J. delivered the opinion of the Court] Cope, J. delivered the opinion of the Court Field, C. J. concurring. This is an appeal from an order refusing to set aside a judgment on the ground of surprise. The application was addressed to the legal discretion of the Court; and upon the affidavits before us, we cannot undertake to say that this discretion has been improperly exercised. The recent case of Haight v. Green is decisive of the matter. Order affirmed.