
    Adolph H. Siewerd vs. Joseph L. Farnen.
    
      Practice — Judgment Irregularly Entered, Stricken out.
    
    A suit was instituted and ail attorney appeared for the defendants, who were partners, and filed pleas denying the plaintiff’s case. A commission was issued to Now Orleans to take the testimony of one of tlio defendants. The commission and testimony were returned. The case not being tried went on the stet docket. Subsequently defendants’ attorney ordered his appearance to be stricken out. A rule was laid on the defendants to employ new counsel, and the writ issued thereupon was returned “non sunt.” Under a rule of Court, when a case is on the stet docket, counsel may compel the opposite party to proceed to trial by giving five days notice in writing to be served on the attorney of record of the party to bo affected by it, or left at his office, or set up in some conspicuous place in the clerk’s office if there be no appearance by attorney, or served on the opposite party personally. No such notice as thus required was given, but plaintiff’s counsel delivered to the sheriff, to bo served on the defendants, a written notice of his intention to call the case for trial after the expiration of five days from the date thereof; and subsequently a like notice was placed in the hands of the sheriff. Each of these was returned unon suntand seven days after the date of the last notice, the suit was prosecuted ex parte, and verdict and judgment were given for the plaintiff. The partnership of the defendants had been dissolved more than four years when the judgment was entered, and the responsible partner lived in New Orleans at the time. He had no notice that the appearance of the defendants’ attorney had been stricken out, and concluded that the suit had been abandoned on the part of the plaintiff, or had been successfully resisted. As soon as he had notice of the entry of judgment, a motion was made to have it stricken out, and he made oath that he had a good and substantial defence. Held:
    That under such circumstances the judgment should be stricken out, and the case tried on its-merits.
    Appeal from the Court of Common Pleas.
    The case is stated in the opinion of the Court.
    The cause was argued for the appellant before Alvey, C. J., Stone, Robinson, Bryan, and McSherry, J., and submitted 'on brief for the appellee.
    
      Frederick W. Brune, and 
      Arthur George Brown, for the appellant.
    
      D. Meredith Reese, for the appellee.
    
      
      Mr. Brown did not particix^ate in the argument, as counsel for the ax^ellee submitted on brief.
    
   Robinson, J.,

delivered the opinion of the Court.

We all agree that the judgment below must he stricken out. It must be stricken out because, the case having gone on the stet docket, ,there was no ajjpearance of record for the defendants when the judgment was entered; nor was there any notice, either actual or constructive, of tlie trial of the case such as is required by the rules of the Court.

The suit was brought at the September Term, 1882, by the appellee against the appellant and his brother, trading as F. H. Siewerd & Bro., for wages as clerk and book-keeper, alleging he had been discharged without cause before the expiration of the year. Mr. ITenninghausen appeared for the defendants, and filed pleas denying the plaintiff’s case. Thereupon a commission to take appellant’s testimony was issued to New Orleans, where he has resided for over twenty years; and on the 28th of December, 1882, the commission and testimony were returned. The case, not being tried, went on the stet docket, and no further entry appears till the 17th of February, 1886, when Mr. Henninghausen ordered his appearance to be stricken out. On the 29th March following, a rule was laid on the defendants to employ new counsel, and the writ issued thereupon was returned “‘non sunt.”

How, by the rules of the Court, it appears that when a case is on the stet docket, counsel may compel the opposite party to proceed to trial by giving such party five days’ notice in writing, which notice must be served on the attorney of record of the party to be affected by it, or left at his office;,.and if there be no appearance of attorney, then the notice must be set up in some conspicuous place in the clerk’s office, or be served personally on such party. Rules 29 and 11.

Ho such notice as is thus required by the rules of the Court was given in this case. The appellee’s counsel did however deliver to the sheriff, to be served on the defendants, a mutton notice of his intention to call the case for trial after the expiration of five days from the date thereof, and on the lltli May, 1887, a like notice Avas placed in the hands of the sheriff. Each of these notices Avas returned by the sheriff “non sunt;” and on the 18th May, seven days after the date of the last, notice, a jury was sworn etc parte and verdict was rendered and judgment entered for the plaintiff. • Here is-a judgment, then, rendered in a case on the stet docket, in which there was no appearance of record for the defendants, and without the notice actual or constructive required by the rules of the Court.

(Decided 18th December, 1889.)

It can hardly be necessary to say that Courts, in the .exercise of a quasi equitable jurisdiction, will set aside a judgment after the expiration of the term, on the ground of fraud, surprise or irregularity, unless there has been acquiescence or unreasonable delay on the part of one seeking the relief. Now, in this case, it must be admitted that there was irregularity at least as to the manner in which this judgment was entered, and there is no proof whatever of acquiescence or laches on the part of the appellant. It was entered more than four years after the dissolution of the partnership, and more than two years after Ferdinand H. Siewerd, the resident partner, had left the city. The appellant, who furnished the capital, and seems to have been the responsible partner, lived in New Orleans, when the suit was brought, and when the judgment was entered. He had no notice whatever of Mr. Henninghausen's appearance having been struck out, and had concluded that the suit had been abandoned on the part of the plaintiff, or had been successfully resisted. The motion to strike out the judgment was made so soon as he had notice it had been entered, and he makes oath that he has a good and substantial defence. Under such circumstances as these, the judgment ought, we think, to be stricken out, in order that the case may be tried on its merits.

Order reversed, and cause remanded.  