
    Silver v. Hull.
    July 15, 1895.
    By two Justices.
    Motion to set aside judgment. Before Judge Eve. City court of Richmond county. November term, 1894.
    J. M. Hull sued Mark Silver on an open account for $327.50, for medical services rendered. The action was brought to the August term, 1891, of the city court of Richmond county, and the defendant was served by the sheriff leaving a copy of the petition and process at his residence. Defendant handed these papers to C. H. Cohen, who had been and was his regular attorney, for the purpose of making defense to the suit, but was informed by Cohen that on account of his personal relations with plaintiff he preferred not to represent defendant in this case. Thereupon defendant gave the papers to Henry Giebner, an attorney at law, with the request that he represent him. By order of the court it was advertised that on November 2, 1891, the opening 'day of the November term, cases in order for trial at that term would be assigned. It was the practice of the court to assign for trial on the opening day of each term all litigated cases, and on that day to render judgment without a jury in all cases wherein such judgments could legally be rendered. The present case was not assigned on that day, but it was called for assignment, and no one being present for the plaintiff, Giebner was about to take steps looking to a dismissal, when Ooben told bim to let tbe case pass over for tbe term, as be, Ooben, was conferring with Baxter, tbe plaintiff’s counsel, and expected Baxter would dismiss tbe suit of bis own motion, because Baxter said be only wanted documentary proof to show tbat tbe account was barred by tbe statute of limitations. Upon tbat information tbe case was passed, so far as defendant was concerned, and Giebner felt no necessity, under tbe circumstances, to give it any further attention; but on December 15, 1891, after tbe juries were discharged for the term, plaintiff, without notice to defendant or bis counsel, entered up judgment for tbe amount sued for This was not known to defendant or bis counsel until about a week afterwards; whereupon a motion was made to set aside tbe judgment upon tbe foregoing facts, and for tbe further reason tbat defendant bad meritorious defenses, one of which was, that tbe account attached to tbe declaration bad no date at all and tbe suit was in fact for services' rendered over four years previously, and was therefore barred by tbe statute of limitations; and tbe other was, tbat defendant bad already paid full value for tbe services sued for, and be expected to be able to establish these facts on tbe trial. He offered to pay all costs necessary to open tbe default.
   Simmons, C. J.

Under the facts appearing in the record, the court committed no error in refusing to vacate the judgment complained of, on any of the grounds taken in the motion.

Judgment affirmed.

The motion was overruled, and defendant excepted.

O. H. Cohen and Salem Dutcher, by P. J. Sullivan, for plaintiff in error. E. B. Baxter, contra.  