
    Timothy Burgess v. T. L. Hutchison.
    Appeal and Error — Judgment Reversed.
    Where on the appeal, the facts show that justice does not appear to have been done acording to the evidence, the judgment will be reversed.
    APPEAL FROM DAVIESS CIRCUIT COURT.
    March 5, 1870.
   Opinion of the Court by

JuDGE PeTEES :

From the affidavit of Weir, one of the attorneys of appellant, be is illy qualified, if indeed competent, to attend to the preparation of bis, case, on account of the infirmities of old age and disease. And from these causes it seems the preparation of bis case mainly devolved on bis attorneys. It also appears that the week before the sitting of the court, Weir applied to the commissioner to know if be expected to make bis report in these cases to the approaching term and be informed him be did not, that it could not then be done, and said to him be merely would present a statement of the reasons why a report could not be made, and under this assurance, be as attorney for appellant rested. He further states, that be himself bad discovered from the books of Wing & Tyler that their accounts charged as expenditures of the hotel, bad been created for, and were the private expenses of appellee, the articles purchased were for bis individual benefit and bad been paid in board of the clerks of said merchants, at the hotel, and if time-were allowed him be could show that the board of the clerks aforesaid, was a proper charge against Hutchison, and were not accounted for by him.

Appellant from the facts manifested in the case, must have been to a great etxent ignorant of the business, and of the condition of the acounts between appellee and himself. The books reported to have been burned, and whether burned or not, inaccessible to him, greatly increased the difficulty in preparing the cases, on the part of appellant, while the knoweldge of the business, which appellee bad, gave him him much greater facilities in preparing the cases for trial than bis adversary bad.

Harlan, for appellant.

Ray & Hardin, for appellee.

Under the peculiar circumstances of this case, and the belief of appellant’s counsel that no report would be made, derived from the commissioner, and the possible hardship of the case, we think sufficient reasons were presented by appellant for a continuance, and that the court below should have re-committed the case to the master to hear additional proof, if the parties should offer any, and for a full report of the true state of the accounts between them.

It is not deemed necessary, or proper, to enter upon an examination of the details of the judgment, as the proof to be taken and further developments may essentially change the condition of the parties.

Wherefore the judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.  