German American Bank v. Cramery

ELLISON, P. J. Plaintiff’s action was instituted on two promissory notes. The judgment in the trial court was for the defendant. Afterwards plaintiff appealed to this court and then dismissed the appeal, and, on the 28th of January, 1914, sued out a writ of error returnable the 2nd day of March thereafter. Defendant has filed a motion to dismiss the writ for failure to give him twenty days’ notice before the return day, as required by section 2071, Revised Statutes 1909. Plaintiff resists the motion. The following is made to appear in affidavits of the attorneys in the cause. The suit was brought in Marion county and the venue changed to Macon county where it was tried. [482] Defendant’s chief counsel resided in Bowling Green, Pike county, perhaps seventy-five miles from Macon City where plaintiff’s attorneys reside. .In addition to defendant’s chief counsel, he had local counsel at Macon City. On the 5th of February, 1914, plaintiff’s attorney mailed a written notice of suing out the writ of error to defendant’s attorney at Bowling Green, accompanied by a letter requesting him to enclose the same to the clerk of this court at Kansas City. Plaintiff’s attorney supposed the notice was received and sent to the clerk as requested, hut, in fact, the notice was never received by defendant’s attorney. Being-mailed on the fifth we can judicially notice that, in regular course, it should have been in the hands of defendant’s attorney on the next day, the sixth, or if, perchance, mailed at Macon too late on the fifth To. arrive in Bowling Green and be distributed before the close of business hours the next day, it, at farthest, should have been received on the seventh, which would have been in time for the legal notice, with three days to spare. The statute aforesaid, requires that, “If such notice be not served, the writ shall be dismissed, unless good cause for such failure be shown;” and we are of the opinion that the foregoing- facts disclose a good cause. The motion to dismiss will therefore be overruled. Defendant, perhaps in reliance upon his motion, has not filed any briefs and'the cause will he continued to the next term, and in the meantime he may file briefs as though the case had been originally docketed for that term. The other judges concur.