Siewerd v. Farnen

Robinson, J., delivered the opinion of the Court. We all agree that the judgment below must he stricken out. It must be stricken out because, the case having gone on the stet docket, ,there was no ajjpearance of record for the defendants when the judgment was entered; nor was there any notice, either actual or con [629] structive, of tlie trial of the case such as is required by the rules of the Court. The suit was brought at the September Term, 1882, by the appellee against the appellant and his brother, trading as F. H. Siewerd & Bro., for wages as clerk and book-keeper, alleging he had been discharged without cause before the expiration of the year. Mr. ITenninghausen appeared for the defendants, and filed pleas denying the plaintiff’s case. Thereupon a commission to take appellant’s testimony was issued to New Orleans, where he has resided for over twenty years; and on the 28th of December, 1882, the commission and testimony were returned. The case, not being tried, went on the stet docket, and no further entry appears till the 17th of February, 1886, when Mr. Henninghausen ordered his appearance to be stricken out. On the 29th March following, a rule was laid on the defendants to employ new counsel, and the writ issued thereupon was returned “‘non sunt.” How, by the rules of the Court, it appears that when a case is on the stet docket, counsel may compel the opposite party to proceed to trial by giving such party five days’ notice in writing, which notice must be served on the attorney of record of the party to be affected by it, or left at his office;,.and if there be no appearance of attorney, then the notice must be set up in some conspicuous place in the clerk’s office, or be served personally on such party. Rules 29 and 11. Ho such notice as is thus required by the rules of the Court was given in this case. The appellee’s counsel did however deliver to the sheriff, to be served on the defendants, a mutton notice of his intention to call the case for trial after the expiration of five days from the date thereof, and on the lltli May, 1887, a like notice Avas placed in the hands of the sheriff. Each of these notices Avas returned by the sheriff “non sunt;” and on [630] the 18th May, seven days after the date of the last, notice, a jury was sworn etc parte and verdict was rendered and judgment entered for the plaintiff. • Here is-a judgment, then, rendered in a case on the stet docket, in which there was no appearance of record for the defendants, and without the notice actual or constructive required by the rules of the Court. (Decided 18th December, 1889.) It can hardly be necessary to say that Courts, in the .exercise of a quasi equitable jurisdiction, will set aside a judgment after the expiration of the term, on the ground of fraud, surprise or irregularity, unless there has been acquiescence or unreasonable delay on the part of one seeking the relief. Now, in this case, it must be admitted that there was irregularity at least as to the manner in which this judgment was entered, and there is no proof whatever of acquiescence or laches on the part of the appellant. It was entered more than four years after the dissolution of the partnership, and more than two years after Ferdinand H. Siewerd, the resident partner, had left the city. The appellant, who furnished the capital, and seems to have been the responsible partner, lived in New Orleans, when the suit was brought, and when the judgment was entered. He had no notice whatever of Mr. Henninghausen's appearance having been struck out, and had concluded that the suit had been abandoned on the part of the plaintiff, or had been successfully resisted. The motion to strike out the judgment was made so soon as he had notice it had been entered, and he makes oath that he has a good and substantial defence. Under such circumstances as these, the judgment ought, we think, to be stricken out, in order that the case may be tried on its merits. Order reversed, and cause remanded.