
    JOHN SMITH, PLAINTIFF, v. CYRIL BAER, DEFENDANT.
    Submitted October 11, 1929
    Decided December 13, 1929.
    Before Justices Pakkee, Black and Bodine.
    Por the rule, Heine & Laird.
    
    
      Contra, Feder & Binzler.
   Pee Curiam.

The plaintiff brought suit to recover compensation for injuries received in an automobile accident, and recovered a judgment of $3,500.

The suit was tried before the late Judge Newman. After his death, application was made to a Circuit judge for an order setting aside the verdict and granting a new trial. The course pursued seems to have been irregular, but the Circuit judge vacated the order and granted a rule for a new trial, which is now before us.

The defendant shows a defense upon the merits and that the case was tried in the absence of counsel actually engaged in other courts. We think the Circuit judge had power, though more than six days had expired from the entry of the verdict, to grant the rule to show cause before us. Since it appears that there was a defense on the merits and that counsel were unavoidably engaged in other courts, we will make the rule absolute, save in this, that the judgment already recovered shall stand as security to abide the outcome of the new trial.  