
    VINCENT J. DeSALVIO, PLAINTIFF-RESPONDENT, v. LUCY BARBATO RAFFONE, INDIVIDUALLY AND AS ADMINISTRATRIX, DEFENDANT-PROSECUTRIX.
    Submitted October term, 1928
    Decided November 30, 1928.
    Before Justices Minturn, Black and Campbell.
    For the prosecutrix, Charles C. Giffoniello.
    
    For the respondent, Meyer Q. Kessel.
    
   Per Curiam.

A certiorari was allowed in this case to review a judgment in, the District Court of the Second Judicial District of Essex county, New Jersey. The following are the pertinent facts on which the judgment is sought to be set aside:

The action was brought by summons in the Second Judicial District Court of Essex county, on July 11th, 1927. A state of demand was properly filed and on July 26th, 1927, when the case appeared on the list for trial, there was a “No appearance” noted in the record.

It was subsequently restored to the list for November 16th, 1937. The defendant filed a demand for a jury. The case was adjourned from time to time, but was definitely set down for trial on April 11th, 1938, and, in accordance with the defendant’s demand for a jury, a venire was issued on April 9th, 1938, returnable on the trial date, April 11th, 1938.

The jury demanded by the defendant was summoned and the case was on the trial list on April 11th, 1938, but the defendant failed to appear; neither did her attorney appear. This appears in the docket record of the District Court, and is admitted by the defendant.

In the absence of the defendant and her attorney, on April 11th, 1938, the plaintiff entered a second “No appearance,” and on April 35th, 1938, entered judgment. Between April 11th, 1938, and April 35th, 1938, no attempt was made by the defendant or her attorney to find out what, if anything, had occurred on April 11th, 1938. As stated above, it appears by the record that the jury demanded by the defendant was summoned and the case set down for trial before the jury on April 11th, 1938. When the defendant and her attorney failed to appear, on the trial day, the defendant lost any right to a trial by jury.

On May 35th, 1938, a rule to show cause returnable June 1st, 1938, was allowed and filed by the trial court. On June 15th, 1938, the rule to show cause why the judgment should not be reopened was heard. On June 30th, 1938, the rule was dismissed by the trial judge, almost a year after the case was instituted.

In this situation we think the trial judge was justified in hearing and deciding the case. The defendant seems to think the trial court was bound to wait indefinitely for the defendant to appear, or at least wait upon the convenience of the defendant.

The certiorari is dismissed, with costs.  