
    Metropolitan Casualty Ins. Co. v. Cato.
    [74 South. 119,
    Division A.]
    Judgment. Setting aside default judgment. Absence at trial. Excuse.
    
    Under the facts in this case as set out in the opinion of the court, the court held that the nil dioit judgment against the defendant taken in the absence of itself and counsel should have been set aside and the case reinstated.
    Appeal from the circuit court of Washington county.
    Hon. Frank E. Everett, Judge.
    Suit by William R. Cato against the Metropolitan Casualty Insurance Company. From a judgment nil dioit for plaintiff, defendant appeals.
    The facts are fully stated in the opinion of the court.
    
      L. A. Smith, for appellant.
    
      Campbell & Cashin, for appellee.
   Sykes, J.,

delivered the opinion of the court.

This is the fourth and last of a series of cases appealed from judgments of the circuit court of Washington county. For a history of the litigation reference is made to an opinion delivered by this division two weeks ago. 74 So. 714. The leading counsel for the appellant insurance company resides at Holly Springs, and was attending the term of the circuit court in Washington county ready to assist in the trial of this case. A motion had been made by the attorneys for the appellant, defendant in the court below, to strike certain allegations from the declaration. From the record it appears that the docket was rather congested. Both the plaintiff and the defendant • were ready to try the case, and it had been set for trial for a day certain of á previous week of court, but had not been reached. A number of other cases were set for trial ahead of this one, and it seemed rather donbtfnl to counsel on both sides whether or not they would be able to get a trial in regular course. The night before the judgment was taken counsel on both sides had conferred and discussed the matter of trying the ease by agreement before a special judge, but had arrived at no definite understanding about the matter. Mr. Smith, the leading counsel for appellant, that same afternoon or night also talked to the presiding judge about the possibility of getting a trial before him. It seems that the judge at that time .was rather uncertain about it, but informed Mr. Smith that he would try to give him some idea the nest morning or the nest day. When court adjourned that afternoon there was on trial a ease in which counsel for appellee was engaged. This counsel told Mr. Smith that the case on trial would consume at least sis hours the following morning. There was a number of other cases on the docket to be tried in their regular order before this case would be reached.

Instead of going to court promptly upon its convening the nest morning, Mr. Smith went to the office of his associate to discuss the tentative agreement relating to trying this case before a special judge. While he and his associate were so engaged, the case on trial in the circuit court was compromised, the judge called the docket, and for one reason or another the intervening cases were passed, dismissed, or continued until the Cato case was reached. When this case was called, counsel for plaintiff announced ready, but no counsel answered for the defendant. Pursuing his rule, which, however, was unknown to Mr. Smith, the circuit judge asked counsel for plaintiff what order he would take. The attention of the judge was called to the motion to strike certain allegations from the declaration. The court then overruled this motion, and at the request of counsel for plaintiff rendered judgment nil dicit in favor of plaintiff for the amount sued for. An attorney who happened to he in the courtroom, in a few minutes after the judgment was taken, notified Mr. Smith and his associate of that fact. They at once repaired to the courthouse and prepared and filed a motion to set aside the judgment. (The record indicates that this occurred within about an hour after the judgment was rendered.) Mr. Cato, the plaintiff, who seems to have been the only witness in his case, was present in the courtroom at the time the attorneys for the defendant filed this motion. The- defendant’s attorneys had not filed any pleas in the case, hut were waiting for their motion above mentioned to be disposed of. However, they had already furnished opposing counsel a copy of the pleas they would file after the court had acted upon their motion. In their motion to set aside the judgment and for a new trial they allege that they had a meritorious defense to the cause of action. The circuit judge followed .his rule in disposing of a case when it was reached on the docket. While we fully realize that it is necessary for a proper and efficient administration of justice that the trial judges have and exercise great latitude relating to the dismissal of suits and giving default judgments, at the same time we also appreciate the severe penalty thus sometimes visited upon a party litigant. In this case counsel for both parties were anxious and willing to try the case. They had previously tried two cases between the- same parties involving practically the same questions in litigation. Mr. Smith was absent from his home in Holly Springs attending this court in Greenville solely for the purpose of trying it. While it is ordinarily the duty of attorneys, when the day their cases are set for trial has arrived, to be present all- during the sessions of court in order to represent their clients when their cases are called, at the same time in this case the reason why Mr. Smith was not present was because of the' fact that the case then on trial promised to last at least six hours, as stated to him by Judge Cashin, who was engaged in the case on trial, and also counsel in tibe instant case, and of tbe further fact that there were a number of other cases pending for trial set ahead of it. The reason why both counsel for defendant were not present in the court was because of an honest belief that the ease would not he reached for several hours, and that they were discussing the advisability of a trial before a special judge. In view of all the circumstances in the case we do not think counsel were guilty of any negligence in the premises. Plaintiff could have been in no way injured by reinstating the case on the docket upon the arrival of Mr. Smith and associate counsel in the courtroom. The plaintiff was still in the courtroom ready for trial. The defendant was also ready for trial. On the other hand, it was a hardship visited .upon this appellant and upon his counsel to overrule the motion. In proper instances where parties or counsel are guilty of negligence or neglect in failing to attend court and look after their litigation, this negligence or neglect of duty should be punished. In the- case at bar, however, the excuse of counsel was a good one, and the court should have set aside the nil elicit judgment, allowed the pleas to be filed, and given the defendant a trial of the cause upon its merits.

Reversed cmd rem'anded.  