
    Gould & Davenport v. W. B. Baird.
    New Trial — Casualty — Misfortune — Petition — Valid Defense — Answer — Demurrer.
    The failure of counsel to put in a defense (no doubt resulting from casualty or accident), where it is not alleged that appellants or their counsel were unavoidably prevented from making a defense, will not warrant a reversal.
    Same Where a petition exhibits the answer which was prepared by the attorney to be filed, but fails to set forth the petition on which the default judgment was rendered, the court cannot know whether the defense thus undisclosed was a bar to the action or not.
    APPEAL EROM MCCRACKEN CIRCUIT COURT.
    January 10, 1867.
   Opinion oe the Court by

Judge Hardin :

The facts alleged in the petition were clearly insufficient to .authorize the court to vacate or modify the judgment complained of, unless they bring the case within the provisions of the seventh .subdivision of section 579 of the Civil Code, conferring power on .the court to vacate or modify a judgment “ for unavoidable casualty or misfortune, preventing the party from appearing or defending,” and moreover disclose a valid defense to the action as ■.required by section 581 of the Civil Code.

Although the failure of the appellants’ counsel to put in the -defense, which appears to have been contemplated, may have, and >no doubt did, result from casualty or accident, it is difficult to -deduce, from the facts alleged, how such casualty could have been ■ unavoidable, as it is not made to appear that either the appellants -or their counsel were unavoidably prevented from knowing at least during the term what disposition had been made of the ease.

But, for another reason, we think: the demurrer to the petition was properly sustained. While the petition exhibits the answer, which it alleges was prepared by appellants’ attorney to be filed, it fails to exhibit or set forth the petition of the appellee so that the court could know whether the defense disclosed was sufficient to bar the action or not.

Harlan & Harlan, for appellants.

Wherefore, perceiving no error in the judgment, the same is •affirmed.  