
    THOMAS WEBSTER vs. McMAHAN, WILLIAMS & HARRIS.
    The counsel for the defendants intending to be absent during the term t> which this cause was returnable, engaged the services of another attorney to attend to his causes generally • he gave the attorney thus employed a memorandum of his cases j m this memorandum, tbe present case was marked “Webster vs. Harris (j Williams.’’ Opon examin’ng tbe dock t, the substitute attorney found no such case upon it. The cause was docketed by ■tbe clerk, “Webster vs. McMahan, &c ,” when the cause was called, no counsel appeared ; a judgment by default Was'rendered. A motion was made to set aside thejudg-ii ent, which was overruled. The judgment of the court below overruling the motion a¡lh med.
    ERROR to St. Lonis Court of Common Pleas.
    STATEMENT 0E THE CARE.
    Til'S was an appeal from a justice of the peace.
    When the case was called for trial, there was no counsel appeared for the appellants in the court of common pleas, and the said court affirmed the judgment below.
    A motion was made foi a new trial, accompanied by affidavits showing that the counsel employed had left St. Louis f r Jefferson City to attend the sitting of the supreme court, buL that one of them had employed P. C. Grace. E q,. to attend to the case when it should be called. That said Grace, on account of the form of the entry by the cle-k of the court below, made in the index to the sifting of the docket, was not able to find the case, and consequently the case was not defended.
    The question is, “Was there sufficient diligence shewn to justify the setting aside the judgment of affirmance and granting a new trial?”
    This is the only question in the case.
    Carroll, for plaintiff in error.
    This is purely a question of diligence. The defendants below, now plaintiffs in error, are surely not chargeable with lack of diligence. They did ail in their power to do. Nor is the ■counsel liable to a charge of lack of attention. The original a torneys employed were both absent from the city, and although this is no defence or excuse i-i Us lr, yet it is no evidence ■against their conduct as fo diligence, when a good and competent attorney was employed by them to attend to the case, who did do a'! they could have done in the case, had they been here. This attorney, so employed, diligently searched the index of cases on'the clerk’s desk, and could not find such a case a? this there.
    In the nature of things, it is impossible for attorneys to be always m one court room. There are manyjcourfs where attorneys are called by their practice, and it often happens that several of these courts are in session at the same time The best then can be done, when an attorney is called !o attend to business in more courts than one, at the same time, is to employ some competent lawyer to attend to his business for him in the court in which he cannot be present. This was done i i this case.
    On the docket of cases handed to Mr. Grace, this case was entered in this wise — “Webster vs. Harris Jfc Williams.’’ Now, on the index, the ease was entered in this way— ‘Webster vs. McMahan &c.” Now the case was against McMahan mud Hairis, and Williams also. But who could fairly guess that a case of Webster vs. Harris Williams, would be docketed as a ca*e of “Webster vs. McM .han, &c? ”
    The lack of care was very o wiously on the part of the clerk who made up the index. Thatofficer ought to state at least the names ofthe plaintiffs and defendants in his list ol'cases set for trial. If he does not state their baptismal names, he should certa nly iheir family or sir- inmes, and all their family or sir-names, if there be more than one. Otherwise, difficulties similar to this may often occur. Suppose there be five defendants, and the name of only one of them is given, and each defendant employs a different attorney to attend his defence, and prepare his answer — (arid under our new code this ¡nay often be the case) — how likely will each, hut one, be misl<-d by such a form of entry ?
    In the case oí Stout vs. C & T. Lewi--, decided by this court in the 1 !th vot. page 438, the circumstances were not as strong ns those attending this case, and yet the court reversed the decision of the nisi prius court, and ordered a new trial to be awarded.
    Theie no attorney wa3 present when the case was catted. The counsel in the cause had volun’arily lett the court rocsn, and had provided no substitute. He'had not spoken to any other attorney to represent hi r>, or to send for him if the ca<e should be called. The case was liable to be called at any moment, and yet he takes the responsibility upon himself of leaving the couit room, and the case is called and disposed of in his absence. This court,in that case, excused his absence and ordered a new/rial.
    The defendant swears to a meritorious defence, and this is enough, as to that for the present.
    If the ease of Stout vs, C. & T. Lewis, above cited, had been before the court below, and the opinion of this court had been obtainable, [think the court of common pleas would have granted anew tria!. I know be should have done soj theretoie it is respeeriutly summitted that the judge of the court of common pleas eired in his refusal to giant a new trial.
    Gardner, for defendant in error.
    The plaintiff, now defendant in error, relies upon the principle decided by this court in the following cases : Austin vs. Nelson, 11 Mo. E. 192; field & Cathcart vs. Matson, 8 Mo. R. 886 ; 10 Mo. Rep. 392*
    from an examination of the record it will appear that the entry of the case on the clerk’s docket was the same as in the justices court, and it appears in the writ and other papers in the suit, to wit: Thomas Webster vs. George McMahan, &e.
    It is manifest the e was no error committed by the cieik in docketing the case whereby the defendants could have been deceived.
    The defendants show' ro particular merit in this case, nor diligence in any manner equal to that shown in several cases in which the judgment of the court below refusing to set aside a judrmei t of default has been affirmed.
    The principal case re.lied upon by the defendants, now plaintiffs in- error, i« that of Stout vs. C. & T. Lewis, in 11 Mo. E. 438. But surely tlieie is nothing in that case to justify so ¡manifest a departure from the uniform decisions of this court, as a reversal of the judgment of the court below in this case would he.
   Ryland, Judge,

delivered the opinion of the court.

From the above statement the simple question before us is thediscre~ tion of the court below. Did the couit below decide properly, that there was not sufficient diligence used by the defendants below, or by their counsel in making defence upon the appeal from the justice of the peace ?

What was the diligence used? It seems that the lawyers who had been employed by the defendanfg-below, thought it more incumbent o» them to attend to some case's in the.supreme court, and consequently went to Jefferson city, during the term of the court of common pleas, in which this case was tried. That one of the counsel employed Mr-Grace, an attorney at law, to attend to his cases in his absence in íhe court of common pleas, and in order that Mr. Grace might do so the counsel furnished him with a memorandum of the suits.

In this memorandum the present case was marked ‘‘Webster vs. Harris & Williams.” Mr. Grace examined the list of cases for trial in the court of common pleas, the docket of the clerk of the court, and could find no such case. The clerk had marked the case thus, “Webster vs. McMahan, &c.,” consequently Mr. Grace d'^1 not defend, and the case being called and no per.son appearing for the defendants, who were the appellants below from the justice of the peace, the judgment of the justice was affirmed.

Motion was afterwards made to set this judgment aside ; affidavits filed in support of the motion, which was overruled.

Now the record shews that the suit was brought by Webster vs. John McMahan, Oliver Harris & John F. Williams, in the court of the justice of the peace. '1 he plaintiff obtained judgment and the defendant appealed. The clerk of common pleas enters the case on his docket, “Webster vs. McMahan, &c.” file defendant’s original attorney gave his memorandum of the case to Mr. Grace whom he had employed, thus, ««Webster vs. Harris & Williams,” and complains of the clerk not making the case on his docket in the same manner.

Now I find no fault with the clerk. It was the hurry of the attorney to reach Jefferson City that made the incorrect statemeut-of the parties names. If he had given the names of all the persons sued below, although he might have been employed by Harris & Williams, and not by McMahan, it would have easily led Mr. Grace to the true parties- He could have found the case ; if there had been the slightest examination of the papers in the case of “Webster vs. McMahan, &c.,” it would have immediately been known who the “&c.” represented.

I am opposed to disturbing this judgment. Parties and their counsel must use more diligence. If in this case a correct memorandum had been given to Mr. Grace, or if he had only made the slightest examin-ination of the papers in the case of Webster vs. Mahan, &c., he might have been fully informed upon this subject. I am not willing to say that there is crassa negligentia here, but I cannot find the due and sufficient negligence.

Let the judgment of the court of common pleas be affirmed.  