North v. Garret

DAWKINS, J. Plaintiff sued his wife for a separation from bed and board on the ground of cruel treatment. The petition was filed October 29, 1919. The case was put at issue by answer filed November 12th of the same year; defendant being represented at the time by counsel, who was afterwards elected to the criminal district bench of this city. The case was continued by preference to May 20, 1920. On that day it was again continued to June 17th; then until October 20th, 1920, when it was continued indefinitely. It was subsequently fixed for February 15, 1921, and on February 4th, preceding, counsel for plaintiff wrote the gentleman who had represented defendant in the answer, advising him of the fixing, and suggesting that he communicate with “whoever is going to handle it as I am anxious to get rid of it.” [528] Defendant’s counsel, as above stated, had become a judge, and therefore incapacitated to continue in the case. At some time before the day of the trial—just when, the record does not clearly show—the judge communir cated with counsel now representing defendant and requested that he look after the matter. On the day of the trial, this attorney, according to allegations of the motion for new trial, was engaged in the early part of the day in the Court of Appeals, áñd did not reach the division of the court below in which the case was pending until it had been proved up with defendant unrepresented. Thereupon counsel moved for a new trial, setting up these facts, and further alleging that 'defendant had a serious defense to the case, but the motion was denied. Without at this time going into the weight and nature of the evidence, which was by the husband aiid two other witnesses who say they knew the defendant only by sight, we have reached the conclusion that the ends of justice will best be served by remanding the case, so that defendant may have a chance to be heard. For the reasons assigned, the judgment appealed from is set aside, a new trial ordered, and the case remanded to the court below to be proceeded with according to law; appellee to pay the costs of this appeal, all other costs to await final judgment.