
    Robert E. Hill vs. Henry A. Jencks et ux
    No.65031
    April 14, 1927
   RESCRIPT

SUMNER, J.

Defendants have filed a motion that default be removed and the case be reinstated.

Affidavits were filed by the plaintiff, Robert E. Hill, his stenographer, Jeanne de Luca, and B. F. Lindsmuth, Esq. The defendant, Jencks, made no affidavit but appeared at the hearing and testified in substance that Mr. Linddmuth had informed him in December that the case was assigned for trial on February 17th; that he knew that Mr. Lindemuth had withdrawn from the case; that he wrote to Mr. Bennett five or six days before the trial, asking him to' take charge of the case, that he saw Hill, the plaintiff, a week before the trial and Hill gave him to understand that the case would be settled and fo.r that reason he, Jencks, did not appear in court. Mr. Jencks did not present any copy of the letter he claimed to have sent to Mr. Bennett, his attorney, and his story does not agree with the statement made by Mr. Bennett to the Court on the day fixed for the trial; viz: that only the day before had he received word from •Jencks' for the first time and that Jencks had asked him to take charge of the case and have it passed, as he' could not 'be in Providente. Mr. Bennett gave no reason to the Court at that time why his client could no.t be. here and has made no affidavit' on the matter*

Fo.r Plaintiff: Wallace R. Chandler, Jr.

For Defendants: George W. Bennett. •

Mr. Ldndesnuth in his> affidavit says he notified Mr. Jencks personally in April, 1926, that he was withdrawing' his appearances in his cases and that he paid no, further attention to them; that on February 11, 1927, Mr. Jencks wrote him, asking him to send the papers in the case to New York and also to recommend an attorney for the trial on February 17; that he did not get the letter until February 15 and then held the papers for Mr. Jencks’ attorney, fearing that Mr. Jencks would not get them in time for the trial if he mailed them to New York.

Mr. Hill in his affidavit says that he told Jencks. in New York-two days before the trial day that he was going to have the case tried and that he came to Providence for that purl poso; and he is corroborated by his stenographer as to the conversations between him and Mr. Jencks.

The Court believes that the defendant Jencks did- not use due diligence in securing an attorney and seeking the possession of his papers, the particular importance of which was not shown to the Court. By his own admission he knew in December that the case was down for trial in February and yet it was not until six days before the day assigned for trial that he wrote to Mr. Lindemuth and only one day before the trial that he engaged his attorney.

Motion denied.  