
    Case 4 — Action por New Trial —
    Feb. 15.
    Prater v. Campbell.
    appeal prom pike circuit court.
    Judgment por Plaintipp and Dependant Appeals.
    Reversed.
    New Trial — Mistake op Attorney — Sale op Standing Timber— Subrogation op Buyer to Warranty Made to Seller.
    Held: 1. It seems that the fact that defendant’s attorney notified him by mistake that his case had been continued is not a ground for new trial, in the absence of an allegation that the mistake of the attorney was not due to want of ordinary care on his part.
    2. A sale of standing timber in contemplation of immediate severance is a sale of personalty.
    3. A sale of timber by parol is at most only a sale of personalty and a warranty as to the size of the timber, made to the seller by the person from whom he bought, does not pass to the buyer.
    JAMES GOBLE, Attorney por appellant.
    (No briefs in record.)
   Opinion op the court by

JUDGE O’REAR'

Reversing.

At the March term, 1897, of the Pike Circuit Court, appellant Prater, recovered judgment by default against appellee, Campbell, on two notes sued on, aggregating $300. After the adjournment of the court, Campbell filed a suit in equity against Prater, seeking a new trial, and set out the causes, why he did not defend the former suit. He alleges he had employed tha law firm of York & Salyer1 to attend to all his legal business in Pike county, and that he was informed by Judge York that all “appellee’s ordinary suits” had been continued, and that, relying on that statement, he had left the county to attend to urgent business affairs; that the other members of the law firm employed by him was necessarily absent from the court on account of a death in his family; that York was also engaged in an important personal litigation that so engrossed his time and attention as 'to prevent his giving appellee’s suit necessary care, that York was mistaken in the statement that the case referred to (it being an ordinary action) had been continued. It is assumed that the facts stated constituted “such, casualty or misfortune preventing the party from appearing or defending” as is contemplated by section 518, subsec. 7, Civ. Code Prac. We held in Phillips v. Skinner, 6 Bush, 662, that a mistake of one’s counsel in the course of preparation of a case was not a ground for a new trial. And it would seem that the facts relied on in this case for a new ¿trial are scarcely sufficient, unless the mistake of the attorney was a casualty' not due to want of ordinary care on his part, which is not alleged in this- case. But, before a new trial can be granted, not only must the grounds relied on therefor be etablished, but a valid defense to the original action must be pleaded and proved. Section 521, Civ. Code Prac.

Appellee undertook in his petition for a new trial to set out his defense to the original action. It is as follows: "The plaintiff further states that some years ago a firm called and known as Sible, Barringer & Co. purchased of the defendant 490 trees, at $ — , when in fact he was not the owner of but 233, and was short on sale of trees 276 trees, and the said trees were reasonably worth at the time $2.50 per tree, which amounts to the sum of $667.50; and the- said firm of Sible, Barringer & Co. sold and transferred said trees to this plaintiff, with all rights, privileges, and immunities pertaining thereto; and the defendant is justly indebted to the plaintiff, and was at the time of the rendition of the judgment, in the sum of $667.50 for shortage on said trees; and this defendant would have pleaded said defense to said notes sued on but for the unavoidable casualty and misfortune set out in the first paragraph of this petition.” In stating grounds, for an injunction, it was alleged that appellant (defendant) was insolvent. Demurrer to, this petition was overruled, and an issue joined on the fact’s- alleged. Judgment was rendered awarding appellee a new trial, and setting aside the default judgment just mentioned.

The proof showed that appellant had sold to one Krool, for IT. tV. Sibley, the standing timber on a certain boundary of land in Pike county, which was counted by Sibley’s agents, and deed prepared by them for it, which appellant signed. He said he could not read, and that he had sold certain timber Of size “18 inches in diameter and up,” but it is alleged the deed calls for 22 inches as the minimum size. The deed was not introduced. The preponderance of .the proof was that the minimum timber branded and counted at the time of the sale was 18 inches. “The shortage” seems to be caused by adopting 22 inches as the minimum size. There is no competent proof of a warranty by appellant, nor is there allegation or proof of deceit by him in the transaction. There is no competent proof showing that appellant is entitled' to be subrogated to Sibley’s warranty, even if there had been one and it had been broken. The- sale of standing timber in contemplation of immediate severance is a sale of personalty. Cain v. McGuire, 13 B. Mon. 341. But, even had the deed to Sibley & Co. been so drawn as to constitute a sale of real property, it is- not alleged that their transfer to appellee was in writing, and therefore it, at most, could be only a sale of personalty, and the warranty to Sibley & Go. could not be transferred in that manner. We know of no rule by which a warranty express or implied, of a chattel attaches to and runs with it as with land. The answer did not, in our opinion, present a defense to the action on the notes. The judgment granting a new trial to appellee is reversed, and this cause is remanded, with directions to set aside the judgment, to dissolve the injunction granted, and to dismiss appellee’s petition.  