
    No. 10,412.
    Orleans
    THOMPSON v BERTUCCI, Appellant
    (March 29, 1926. Opinion and Decree.)
    
      (Syllabus by the Court.)
    
    1. Louisiana Digest—Appeal—Par. 729.
    Where a litigant is not vigilant in his own interest, a cause will not be remanded because a judgment was taken against him in the absence of himself and his counsel. But, if the evidence administered in confirmation of default is insufficient to support the judgment, and it seems likely that further evidence could be presented, this court will reverse the judgment appealed from and remand the case for further hearing upon that ground.
    Appeal from the Civil District Court, Hon. E. K. Skinner, Judge, Division “C”.
    Action by Anna Thompson, widow of John Dines, against William Bertucci.
    There was judgment for plaintiff.
    Defendant appealed.
    
      Judgment reversed and case remanded for further proceedings according to law.
    I. J. Barrios, of New Orleans, attorney for plaintiff, appellee.
    Dart and Dart and L. L. Dubourg, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Defendant appeals from a judgment taken against him in the sum of $1900.00 in his absence and in the absence of his counsel. A motion to advance the case upon the ground that as a claim for personal injuries it was entitled to preference was made by defendant in this Court and granted. In this motion the following circumstances are related concerning the conditions under which the default judgment was obtained and the truth thereof is generously admitted by plaintiff’s counsel:

“That mover, who was absent in Bay St. Louis, Miss., only received notice from his then counsel that the above cause was fixed for trial in the Civil District Court on the night before the date on which the case was fixed for trial; that his said counsel telephoned him on the night before the trial over long distance telephone of the fixing of the case for the next day; that mover informed his said counsel at that time that it would be impossible for him to make arrangement at that late hour to leave someone in his place and come to New Orleans the next morning, and requested said counsel to have said case continued. That mover heard nothing more from his said counsel and assumed that the case had been continued, but said case had in fact been tried the next day in mover’s absence, as mover subsequently learned, as hereinafter set out; that the record in this cause shows that at said trial mover’s counsel did not appear and judgment was rendered against mover for the full amount sued for, which is $1900.00, approximately. That mover only learned that this judgment had been rendered against h.im a short time ago when he undertook to sell his interest in a piece of real estate in this city and the said judgment- appeared on the mortgage certificate ordered out by the notary as an encumbrance against said property.”

We are asked to remand the case and are referred to Succeession of Kerner, No. 8785, Orleans App., where we said:

“While absence of counsel at the original trial of a suit (except under conditions prescribed by Act 196 of 1912) furnishes no peremptory cause for continuance on behalf of counsel’s client, but is rather a matter Within the discretion of the trial judge, nevertheless, when it appears on appeal that appellant has, by no fault of his own, been deprived of a fair opportunity to have his cause properly presented and tried, the Appellate Court, in order that the ends of justice might be subserved, will set aside the judgment appealed from and will remand the case for further trial.”

We think the present case differs from the Succession of Kerner, and while we are prepared to go very far to relieve litigants from the derelictions of counsel who neglect their interests in matters of this sort, nevertheless, when, as in this case, the litigant himself seems indifferent or at least displays insufficient interest in his own affairs, we think it would be an abuse of our discretion to reopen the case on that ground. The defendant, assuming that he relied on his counsel obtaining a continuance, which would be assuming much, for only the Court, and not counsel, could give such assurance, should have made some inquiry as to the progress of the litigation, and failing to hear from his counsel, should have obtained other counsel or taken the matter in his own hands. A proper interest in his own affairs should have prompted him to act before he did, and his not being advised or not knowing the fact that judgment had been rendered against him is no excuse. Months elapsed after the judgment and a fi fa was issued without awakening defendant to activity in his own interest, and it was only when he desired to sell bis interest in property encumbered by tbe judicial mortgage resulting from tbe recordation of the judgment tbat be became active.

However, we cannot affirm tbe judgment appealed from because of insufficient evidence to sustain it.

No one testifies that defendant injured tbe plaintiff except tbe plaintiff herself, and she says she was unconscious immediately following tbe accident; consequently we are unable to see bow she could tell who struck her or what automobile ran into her.

“Q. Do you know tbe name of tbe party who owned tbe automobile tbat struck you?
“A. Bertucci.
‘‘Q. How do you know bis name is Bertucci?
“A. T know bis place of business, and he also gave bis name and address to tbe motorman and conductor of tbe car tbat I was discharged from.
“Q. Do you know who was operating tbe Bertucci car when it struck you?
“A. I didn’t notice anything, but tbe time tbat I could look around be was right on me. After be struck me I didn’t know anything.”

The witness W. J. Cummings testified:

“Q. Did you see tbe accident?
“A. Well, I was on tbe car tbat morning and beard a commotion on tbe car and looked back to see what happened and someone hollered, ‘They knocked tbat woman down,’ and I jumped down quick to get tbe automobile number, and be said --the party who bit tbe woman is gone, and a colored chauffeur said, ‘No, that’s tbe car that knocked tbat woman down.’ ”

Samuel Daupbine testified:

“Q. Do you know anything about tbe accident?
‘‘A. I was on tbe car tbat time going to work, and as soon as she put her foot out of the car I beard her boiler. I didn’t know What happened until I got off; tbat was somewhere around seven or eight o’clock, and as soon as she got off tbe car I beard someone boiler, and I didn’t know what happened until I went to tbe window and looked, and tbat was when I saw her. The automobile had gone off.”

Julia Page testified:

“Q. Did you see tbe accident?
“A. I did not; when I saw her she was lying down and tbe automobile had passed her.
‘‘Q. Did you see tbe automobile tbat was accused of bitting her?
“A. I saw two automobiles, but I don’t know which one bit her.”

When it is considered tbat tbe defense to this suit as set up in tbe answer avers tbat defendant was tbe victim of a mistake and was charged with running into tbe plaintiff because be happened to be following tbe automobile which struck her and ran off, and in stopping to render possible assistance to tbe injured plaintiff was mistaken for tbe party who caused tbe accident, it will be seen tbat this defense is not without support in tbe testimony of plaintiff’s witnesses testifying solely under examination by plaintiff’s counsel. On tbe other band, there is nothing but plaintiff’s statement tbat Bertucci ran into her to sustain the judgment, and this cannot be accepted, for she claims to have known nothing after tbe accident.

Tbe judgment must be reversed, but in view of all tbe circumstances we will remand tbe case, for it may be that plaintiff can offer other testimony which, in tbe absence of defendant and defendant’s counsel, be considered unnecessary. At any rate, we will give counsel an opportunity to present further testimony by remanding tbe case.

For tbe reasons assigned, the judgment appealed from is reversed and it is now ordered tbat this cause be remanded to tbe Civil, District Court for further proceedings, according to law, and not inconsistent with tbe views herein expressed.  