
    Jay Dee Warren v. Frank Gardner Hardware and Supply Company.
    [51 South. 129.]
    'New Trial. Grounds. Absence of party.
    
    Where a- ease was tried on an early day of a special term of court and the defendant, a material witness in his own behalf, was absent because of an honest mistake causing him to believe that the case would not he tried until a later day of the term, a judgment against him should he vacated, in the discretion of the court at his costs, and a new trial granted, on seasonable application and presentation of the facts made during the same term, supported by a proper showing of a good defense.
    From the circuit court of, second district, Jones county.
    IIon. Robert L. Bullard, Judge.
    The Frank Gardner Hardware & Supply Company, appel-lee^ a corporation, was plaintiff in the court below; Warren, ■appellant, was defendant there. From a judgment in plaintiff’s favor the defendant appealed to the supreme court.
    
      Tbe plaintiff company sued defendant to recover tbe value of building material sold by plaintiff and used in a building erected by defendant. Personal service of process was bad on defendant returnable to tbe regular September, 1906, term of the-circuit court to be beld in tbe town of Ellisville, tbe county seat of tbe first judicial district of tbe county. At sucb term,, upon proper motion of defendant, tbe cause was transferred,, in compliance witb law, to tbe second judicial district of the-county, for trial at Laurel, tbe county seat of tbe second district of tbe county. At tbe March, 1907, term of circuit court, at Laurel, tbe defendant having pleaded to tbe declaration, tbe cause was continued. Subsequently, at a special term of tbe circuit court wbicb began in Laurel on the second Mon-' day of March, 1909, and continued in session for four consecutive weeks, tbe cause was set for trial to be- bad on tbe third day of tbe term. On that day tbe cause was called for trial;defendant did not appear, but bis attorney was present and cross-examined tbe plaintiff’s witnesses, and, there being no-evidence in behalf of defendant, a verdict was rendered for plaintiff. Five days later, during tbe same term, tbe defendant made a motion for a new trial, bis affidavit in support of tbe motion showing, that be was a traveling salesman and had left bis borne in Laurel, on bis- routine of travel, on tbe day when tbe special term of court convened, honestly believing that tbe cause was set for trial on a day later in tbe term than the one on wbicb it was tried, and showing bow be bad been misled; that defendant bad a meritorious defense, showing-it, and tbe defendant asked for a new trial, there being ample time therefor, during tbe special term. Tbe court below overruled the motion.
    
      B. E. Eaton, for appellant.
    This cause was tried on the third day of tbe team,- the appellant being absent, and resulted in a judgment as a result of a peremptory instruction to find for tbe appellee in the sum demanded. On the seventh day of tbe term, tbe appellant filed •a special motion for a new trial, supported by affidavit to the ■effect that' lie had been mistaken as to when his case was to be tried, and that his impression was that the case was to have been tried on a later day than that set for the trial. The appellant set up in his affidavit that he had prepared to be present at the trial on March 25, and that his absence was due either to the fact that he had misunderstood his counsel when he was informed of the date of the trial, or that his counsel was himself mistaken in such information and that he advised appellant incorrectly as to the date. It is shown in the affidavit that this special term lasted four weeks, and that three ■weeks remained after the motion for a new trial had been overruled. The appellant offered to submit to any conditions that the trial court might impose on giving him such new trial, and ■set forth in his affidavit that he had a meritorious defense, the ■substance of which was fully stated in the affidavit.
    We recognize that in matters of this kind the presiding judge has, or ought to have, great discretion of decision, but here the .■appellant showed that he was absent through .a misunderstanding of the time his case was to have been tried, and that, but for the misunderstanding, would have been present. If pres■ent, his testimony would, if believed by the jury, have given him a perfect defense. There were three weeks left of the term after the motion was made and overruled. It is apparent that the case could have been re-tried in not more than an hour, since the issue was short and the testimony limited. During those three weeks, appellee could have had his trial and •appellant’s case fairly presented, and appellee, if he prevailed, ■could have recovered.
    
      Shannon & Street, for appellee. -
    The court calendar was published in the county newspaper, •showing the day on which each case was set for trial. The appellant was a subscriber for this paper. In addition to this, learned counsel for appellant, personally, as he says, notified appellant that bis case was set for trial on tbe first Wednesday, tbe day on wbieb it was tried. Not only this, but so sure was learned counsel for appellant tbat be bad informed bis client •of tbe day set for trial, tbat be consented to go to trial without bim, because be thought as he says, tbat be was in no attitude to ask for a continuance. Tbe appellant bad bis day in court. In fact be was in court from tbe time tbe declaration was filed •on August 9, 1906, until tbe trial in March, 1909, and in view •of bis gross negligence, be was in no attitude to ask for, or receive, any further leniency or new trials at the bands of tbe ■court. To adopt any other rale in a case of this kind, would greatly retard tbe business of tbe court, for one would never know at what moment, or on what grounds, new trials would be given to litigants who bad lost their case by forgetting to go to court.
   Mayes, J.,

delivered tbe opinion of tbe court.

While we are reluctant to interfere with tbe discretion of tbe trial court, yet it is our judgment tbat a new trial should have been allowed in this case, and tbe appellant taxed with all tbe costs accruing up to tbe date of tbe application therefore. We think justice demanded tbat this be done in this case, and tbe appellant given an opportunity to present bis defense to tbe suit instituted against bim.

This being our view, tbe case is reversed and remanded.

Reversed.  