Stoppelfeldt v. Milwaukee, Manitowoc & Green Bay Railroad

Cole, J. We are inclined to bold that tbe default of tbe company to appear and defend was excused, and that tbe court should have granted tbe application for a new trial. Tbe case should be regarded as though Mr. Cotzhausen were tbe sole at691 tomey of tbe company. It is true tbat Messrs. Mann & Cotz-bausen were attorneys of record, and tbat Judge Mann was present when tbe case was called for trial, and, after objecting tbat tbe court could not try tbe case because tbe term bad legally closed, declined to take any further part in tbe trial. It appears tbat tbe cause bad been under tbe exclusive management and control of Mr. Cotzbausen, tbe attorney of tbe company, and tbat Judge Mann was not familiar witb tbe facts. Tbe case involved an assessment of damages for taking tbe plaintiff’s land for tbe use of tbe company, and, doubtless, Judge Mann might have examined tbe witnesses produced, and argued any question of law which might arise, without any previous knowledge of tbe case. But be might not have known what witnesses were to be called upon tbe part of tbe company, and, therefore, might not have been able to present its case fully to tbe court or jury. Mr. Cotzbausen was prevented, by unavoidable delays on tbe trains from New York to Milwaukee, from being present When informed in New York tbat tbe cause would be taken up tbe latter part of tbe week, be immediately started borne, expecting to reach Milwaukee in time for tbe trial, but tbe trains failed to connect. It seems to us tbat this shows a case of excusable neglect, within tbe spirit and meaning of section 38, chap. 125, R. S. Of course tbe court can, on granting a new trial, impose such terms as to costs as may seem just in view of tbe trouble and expense tbe plaintiff bad incurred. But we think, under tbe circumstances, a new trial should have been granted. Johnson v. Eldred, 13 Wis., 482; Butler v. Mitchell, 15 id., 355. By the Court. — Tbe order refusing a new trial is reversed, and tbe cause is remanded to tbe county court for further proceedings according to law.