Aultman-Taylor MacHinery Co. v. Caldwell Co.

*473 Opinion of the court by Bukwell, J.: This case was dismissed for want of prosecution, and on application duly verified the trial court refused to reinstate it, and hence this appeal. The 'attorney for appellant, Mr. E. E. Blake, resided at the city of El Beño,' and the train was scheduled to leave that place for Washita, which is fortr miles from Arapahoe, the county seat, at 3:40 a. m., and to arrive at Washita at 6:05 a. m. on the same day, making it possible to reach Arapahoe by 7 a. m., by driving from Washita. On the morning in question the train was late, and although the appellants attorney traveled as fast as he reasonably could he did not arrive at the court room in Arapahoe until 9:25 a. m. and, upon making en-■quiry, was informed that the court had finished the business for the day, and that his case had been dismissed some ten minutes before. Counsel then filed an application to reinstate, setting up all of the facts, and further showing that his client hack a meritorious defense, and that appellant was ready for trial. The application was overruled. We think it should have been granted. Under all of the circumstances, ■counsel had allowed himself reasonable tipie to arrive at Arapahoe for the trial; and in the absence of any showing ■on the part of the appellee to the effect that the trains were irregular and could not reasonably be relied upon to run on time, the showing of the appellant must be taken as true. The judgment of the lower court is hereby reversed, and the case remanded with direction to sustain the application to set aside the order of dismissal, and grant a new trial at the cost of appellee. Irwin, J., who presided in the court below, not sitting; all the other Justices concurring.