Leaming v. McMillan

Hughes, J. (after stating the facts.) It appears, from the statement of the case, that the failure of the plaintiff, Darling, to appear at the term of the court when the . judgment of dismissal was rendered was caused by an unavoidable casualty, and that the nonattendance of himself and counsel was excusable under the circumstances. In Tidwell v. Witherspoon, 18 Fla. 282, it was held that “the neglect of an attorney to prepare and file a plea, caused by his being summoned to a distant place on account of the serious illness of his wife, even though he might have made arrangements with another attorney to prepare it, or might have notified his client, yet did not do so because of his anxiety for his family, is not such neglect as should operate to the prejudice of his client.” And in this case the judgment by default was opened up. In McArthur v. Slauson, 60 Wis. 293, it was held that the refusal of the trial court to open a judgment obtained in the unavoidable absence of the defendant’s attorney, for the purpose of allowing a defense, was error. See also Snell v. Iowa Homestead Co. 67 Ia. 405; Triplett v. Scott, 5 Bush, 81. In Nye v. Swan, 42 Minn. 243, a default by reason of the sickness of an attorney was opened to allow a defense. The statute of Minnesota made this a matter of right under the circumstances. Under the circumstances of the case at bar, there being no contention that Darling’s case lacked merit, we think no laches was imputable to him, and the sickness of his attorney’s wife was an unavoidable casualty, excusing his non-attendance at the court. We therefore reverse the judgment of the circuit court, with directions to re-instate the cause, and revive it in the name of Darling’s administrator.