HEINLEN v. CENTERVILLE & KINGSBURY IRRIGATION DITCH CO.

HEINLEN v. CENTERVILLE & KINGSBURY IRRIGATION DITCH CO. No. 8700; July 26, 1884. 4 Pac. 417. Default—Setting Aside for Accident and Surprise.—Where defendant answers, but, failing to appear at the trial, judgment was rendered for plaintiff, there was no abuse of discretion on the part of the court below in granting defendant’s motion to vacate the judgment and award a new trial, on the grounds of accident and surprise. APPEAL from the Superior Court of Tulare County. In this cause defendant answered, but, having failed to appear at the trial, the court, after proofs taken, rendered judgment for plaintiff. Subsequently, defendant moved to vacate such judgment and for a new trial, on the ground of accident and surprise, in that defendant never received or had notice of the fact that the cause had been set for trial, which motion was granted. Prom this order plaintiff appealed. Atwell & Bradley and C. A. Heinlen for appellant; S. C. Poage and W. A. Tupper for respondent. [MAJORITY — By the COURT.] By the COURT. There was no abuse of discretion on the part of the court below in granting defendant’s motion to vacate the judgment and award the defendant a trial. Order affirmed.