
    OTTO REINSHAGAN v. MICHAEL LAREZZO.
    Jackson,
    September Term, 1876.
    PKACTICE. Absence of counsel cause for new trial, when; reversal for failure to grant.
    Where the defendant has pleaded a set-off to an action against him, and the case is called and tried within a few minutes after court was convened in the morning, in the presence of the defendant, but in the absence of his attorney,' who came into court “within a few minutes after the cause was tried, and immediately moved the court to set aside the judgment, offering to try the case immediately and before the court without a jury,” and upon this motion made affidavit “that he resided in the country and had endeavored to reach the court room before the trial,” but had failed by a few minutes, the judgment should be set aside, and the defendant heard on his plea of set-off, for refusal to do which the supreme court will reverse the case, and remand for a new trial.
   I'eeeman, J.,

delivered the opinion of the court:

This is a case on the “easy docket” for affirmance, which must be reversed. The suit was on a note. Defendants filed their plea of set-off, claiming plaintiff was indebted to him.

When the case was called for trial, defendant was in court, but his counsel was absent. The case had been called for trial within a few minutes after opening court in the ■morning.

The record shows that the attorney came into court “within a few minutes after the cause was tried, and immediately moved the court to set aside the judgment, offering to try the ease immediately, and before the court, without a jury.” The counsel made affidavit on this motion, “that he resided in the country, had endeavored to reach the court room before the trial,” but had failed, as it seems, by a few minutes.

We think this a case where the court should have allowed a new trial, or rather, have set aside the judgment or superseded it, and heard the defendant on his plea of set-off, thus disposing of the entire case..

Too much haste in such cases may expedite business at the expense of justice.

We think this such a case, and reverse the case, and remand for a new trial.  