Weems v. McDavitt

Opinion by Green, C.: Frank McDavitt sued J. E. ' Weems upon two promissory notes, in the district court of Sedgwick county. An answer was filed admitting the execution of the notes, but alleging that there was a failure of consideration. In May, 1889, the case was transferred to the common pleas court, and regularly assigned for trial on the 7th day of June, 1889. It appears from the record that on the 4th day of June defendant’s attorney stated to the court that the counsel in the case had agreed upon a continuance until about the 11th day of June, the particular time to be fixed by the court j that in answer to such statement the court stated that the case would not be tried on Friday, June 7, as shown by the docket, but that, when the case was called, a day could be agreed upon for the trial of the same. On the 7th day of June the case was called for trial, in the absence of the defendant and his counsel. A jury was waived by the plaintiff, a trial had, and the court rendered a judgment in favor of the plaintiff in the sum of $2,383.06. The defendant filed his motion for a new trial, based upon the following grounds: 1. Irregularity in the proceedings of the court and the prevailing party, by which the defendant was prevented from having a fair and impartial trial. 2. Abuse of discretion on the part of the court, by which the defendant was prevented from making any defense. 3. Fraud practiced by the prevailing party in obtaining judgment. [268] 4. Unavoidable casualty, rendering it impossible for the defendent to make his defense. In support of the motion for a new trial, the defendant filed the affidavit of one of his attorneys, which stated in substance that, on the 4th day of June, 1889, he found it impossible to secure the attendance of material witnesses; that he called upon the attorneys for the plaintiff, and obtained their consent for a continuance until the next Wednesday, or some other day the following week, to be fixed by the court; that the court was informed of such facts, and was requested to set the case for Wednesday, June 12; that the court stated that it would be impossible then to set the case for a day certain, but that the case would not come up on Friday, June 7, because the court was behind one day, and that it would not be likely to come up that week; that when it was called, arrangements could be made for a trial day to suit all parties; that relying upon the statements of the court, counsel did not attend court on Friday, June 7, and that he had no notice of the trial until the following day; that he was only absent from his office from 10 to 11:30 o’clock in the forenoon, during Friday, June 7, 1889. This affidavit was followed by another affidavit, showing the nature of the defense. The motion for a new trial was overruled, and this is assigned as error. The plaintiff in error first objects to the amendments suggested by the defendant in error being considered as a part of the case-made, because such amendments follow the certificate of the judge, which recites that the case-made, “as above set forth, is true and correct.” By a reference to the certificate, it appears that the judge certified that “ the foregoing case-made, and the amendments thereto marked ‘amendment A’ and ‘amendment B,’ have been duly served, etc., . . . and I hereby settle, allow and sign the same as true,” etc. This is all that is necessary, we think, to make the amendments a part of the record. It is urged that the court erred in not sustaining the motion of the plaintiff in error for a new trial, upon the ground of the [269] irregularity in the proceeding of the court in calling the case for trial, and in taking evidence in the absence of the defendant, and without the intervention of a jury, where there had been no waiving of a jury by the defendant. In addition to what has already been stated, it appears from the record that the defendant had requested the court to continue the case to a later date than the 7th of June, but the court refused to grant such continuance, but stated to defendant’s counsel, on the 4th day of June, that in the event the case was not reached on the day set for the trial, a time could then be agreed upon when the case should be tried; that on the 7th day of June the case was reached and called for trial, and a bailiff was sent out to find the attorneys of the defendant, and they could not be found. It further appears from the record, that during the trial of the case one of the defendant’s attorneys came into the court room and was informed that the case was on trial, and he interposed no objection. Upon the record as presented to us, we think the counsel for the defendant below should have been present in court on the day the case was assigned fi*r trial. It must have been evident to counsel that there was to be some disposition of the case on that day — that it was either to be tried or assigned for some other day. According to the affidavit of counsel, “ when it was called, arrangements could be made to suit all parties.” It was obvious, from this language, that the case was to be called on the day it was assigned for trial, and clearly it was the duty of counsel to have been present, unless a positive arrangement had been made, with the approval of the court, by which the case was continued to a day certain. “Every one having a matter in litigation before any tribunal, court, or county board must, in order to protect his rights, be present at every session at which the controversy may be determined, until there is a final disposition. He stays away at his peril; and if, during his absence, the matter is disposed of, he can blame no one but himself. This, in many cases, is a great hardship. Many a suitor in the courts has felt it to be so, yet no remedy has as yet been devised.” [270] (Masters v. McHolland, 12 Kas. 17; Mehnert v. Thieme, 15 id. 368; Green v. Bulkley, 23 id. 131; Turner v. Miller, 28 id. 50.) The contention of the plaintiff in error that the district court erred in receiving evidence in the absence of the defendant below, and without the intervention of a jury, is not well founded. If the defendant failed to appear, the court had a right to dispose of the case, and by not appearing at the time the case was assigned for trial he waived his right to a trial by a jury. (Civil Code, § 289; Green v. Bulkley, supra.) The record fails to show that fraud was practiced by the prevailing party in obtaining the judgment, and we do not think there was unavoidable casualty by which the defendant was prevented from making his defense. It is recommended that the judgment of the district court be affirmed. By the Court: It is so ordered. All the Justices concurring.