
    F. Neas vs Luigi Rosa alias
    No. 66097
    March 31, 1927
   RESCRIPT

SUMNER, J.

The defendant has filed a motion to set aside a default and reinstate the case.

For Plaintiff: Knauer & Fowler.

For Defendant: A. A. McCaughin.

The facts are substantially as stated in the affidavit of P. S. Knauer, attorney for the plaintiff, that the case was reached shortly before 12 o’clock; that the defendant had been seen in the court house within a short timb; that when the case was called defendant’s attorney stated that he could not find his client and wanted to have the case passed; that the Court offered to impanel a jury and then continue the case until 2 o’clock for trial in order to give opportunity for the defendant to appear; that defendant’s attorney declined the offer and said that ihe plaintiff could take default.

Mr. Knauer in his affidavit also says that attorney McCaughin informed him two days after the default that his client had told him. that he had been taken suddenly ill at the court house and gone home.

The defendant Rosa in his affidavit says that he was in the court house until about 11:30 a. m., that he then left the court house, understanding from his attorney that the case would not be reached until 2 p. m.

M,r. McCaughin, the defendant’s attorney, has made no affidavit substantiating the claim of the defendant that he left the court house through a misunderstanding with his attorney as to the time of reaching the case, nor has he denied the statement of Mr. Knauer' that he informed him that his client had said he had been taken suddenly ill in the court house and had gone home.

If the defendant did have a misunderstanding as to the time that the case was to bo tried, it must have been based on some statement made to him by the attorney, and there is nothing on record to indicate that the attorney made any statement upon which such misunderstanding could be based, nor does it appear that the defendant came back to the court house at 2, o’clock prepared for trial. ...

Upon these facts the Court thinks that the motion to set aside the default should be denied.  