Supreme Court of Appeals of West Virginia, March 27, 1897. During the term of court, the counsel representing the parties plaintiff and defendant in a case, in the presence of the regular judge, are talking over the business remaining unfinished, the defendant in said case being present, who understands from the conversation that his case should not be taken up before the next Tuesday for trial, which conversation was on Friday; and under this impression the defendant, with his witnesses, left the court. On Saturday a special judge was elected, who went upon the bench on Monday morning, and tried the case, in the absence of said defendant and his witnesses, and in ignorance of said misunderstanding, although an attorney for the defendant was in town, and had notice that a jury was being called in the case, and refused to go to the court house, on account of some feeling existing between himself and the special judge, and on account of his being, too, unwell to attend to business, and sent another attorney to state the matters to the court in reference to said understanding. The trial is proceeded with, and a judgment is rendered against the defendant, although he claims to have had a good defense. The trial of the cause, under the circumstances, works such a surprise upon the defendant that a motion to vacate the judgment, set aside the verdict, and award a new trial, should have prevailed.

(Note by Ed.-Code W. Va. 1887, ch. 112, § 11, provides that the attorneys present and practicing in the circuit court, may elect a special judge to hold court during the absence of the regular judge.)

ENGLISH, P.: This was an action of assumpsit, brought in the Circuit Court of Logan county, but afterwards transferred to Mingo county, in which Joseph Simpkins was plaintiff, and H. S. White was defendant. On the 16th day of September, 1895, the defendant not appearing, the case was submitted to a jury, upon the issue joined, and resulted in a verdict for the plaintiff for $2,200, and judgment was rendered upon said verdict, with interest thereon from the date of said judgment and costs; and on the same day the defendant, by his attorney, moved the court to vacate the judgment entered therein, and to set aside the verdict of the jury, upon the ground

that he was not present at the trial, for the reason that it was his understanding that the case had been postponed to, and would not be called for trial until, the 17th inst., and he was taken by surprise. After hearing the evidence, the court overruled the defendant's motion, and refused to vacate said judgment, and set aside said verdict, and grant a new trial, to which ruling the defendant excepted, and applied for and obtained this writ of error.

The difficulty in this case seems to have arisen from the fact that, the regular judge having absented himself, a special judge was elected to proceed with the trial of the docket. It appears from the testimony of Thomas A. Harvey, who was the regular judge of that court, that at the dinner table on Friday (Mr. White, the defendant, and Mr. Shumate, his attorney, and Mr.. Shepherd, attorney for the plaintiff, Joseph Simpkins being present) there was a conversation of which Judge Harvey says: "In the meantime I had set two felony cases for Monday. * ** I didn't think it possible that case should come up before Tuesday morning. Mr. Shumate agreed with me that he did not think it could come up, and Mr. Shepherd said that if it didn't come up before Tuesday, that he wouldn't be here. I didn't set the case at the court house, and, if I had been here, this case would not have been tried Monday before the train got here.

* If I

had been here Monday morning, we would have gone into the felony cases, and that case (meaning the one under consideration) would not have come up before Tuesday. That is my idea of the case. I did not, in court or out of court, set the case for any particular day. There were only two cases set,-Sparks against the R. R. Co. The lawyers agreed on Tuesday as the day, and I acquiesced in it.” It appears that C. M. Turley was elected special judge on Saturday, and that the defendant, H. S. White, was aware of his election on Saturday. The case was heard in the forenoon on Monday, said special judge presiding. The defendant, H. S. White, in response to the question, "State why you were not here on Monday last?" said: "I had been here nearly all of last week on this case and others during the latter part of the week. I was under the impression it was on Saturday that Judge Harvey was going away, and that a special judge would be elected, and he was calling the docket (Judge Harvey was), and running down the list; and I understood that the railroad case, one of them, would be probably tried by the special judge, and, when he came to the case of Simpkins v. White, the judge looked around, and smiled,— Judge Harvey did; and I understood that there was another case that would keep them busy until Tuesday, and that he would take this case up Tuesday. I was sitting right here, watching the court, and Mr. Shumate was near by. I took the train home, and when at the train that afternoon, I saw some of my witnesses, and told them that I would probably telegraph them on Tuesday if the

case came up, and to be ready to come. I told them that I understood the case would go over until Tuesday, as it would take three or four days to try it; that was the impression made on my mind; that Judge Harvey would be back Monday; and that the special judge would not take it up." This witness further states that he was very much surprised when he heard the case had come off; had made no arrangements to come; had directed his family to have the books and papers ready where they could get them, and catch the train; that he does not think he owed the plaintiff, Simpkins, one dollar, and believes he would be able to have the court, either Judge Harvey or Judge Turley, wipe out the judgment on a fair trial. The error relied on by the plaintiff in error is the action of the court in refusing to vacate and set aside the judgment rendered against him under the circumstances. Did the court err in so ruling?

Now, while it is true that courts should seek as far as possible to avoid unnecessary delays in the trial of causes, and to promote the speedy administration of justice, and, in doing so, they are to a large extent clothed with discretion, yet that discretion should not be so exercised as to cause it to work a hardship or injustice to the parties litigant. Now, it will be noticed that Judge Harvey, in his testimony, says: "I said there at the dinner table, in the presence of these gentlemen, Mr. Shumate, Mr. White, and Mr. Shepherd, counsel for Mr. Simpkins, I understood that I didn't think it possible that that case would never come to trial, or something of that kind; that I didn't think it possible that that case would come up before Tuesday morning. Mr. Shumate agreed with me that he did not think it could come up." He also says the lawyers agreed on Tuesday as the day, and he acquiesced in it, but that remark may have applied to the cases of Sparks against the railroad company. Mr. Shumate, Mr. White, and Mr. Shephard, counsel for the plaintiff, were present. Mr. White acted upon this understanding, and instructed his witnesses accordingly, and says that he was surprised when informed that the case had been heard on Monday; that he had a good defense, and could show that he did not owe the plaintiff's claim, or any part of it. It is true, his attorney, Mr. Shumate, was in town, near the court house, when the case was called, on Monday; and when informed that the court was calling a jury in the case, feeling too unwell to go to the court house, he requested both Mr. Wilson and Mr. Wilkinson, attorneys (the latter of whom was generally employed by said White, but who was not attorney in this case), to go into court, and state the facts; and Mr. Marcum, attorney for Joseph Simpkins, in his testimony says that Mr. Wilkinson came in after the jury had been sworn, and told him what Mr. Shumate had said, that Mr. Shumate would not come in and interfere on account of Mr. Turley, but that he claimed that Judge Harvey had set the case for trial on Tues

day. Mr. Shumate, attorney for White, did not go to the court house; but, if he had gone, he could have done nothing more than Wilkinson did for him,-state his understanding that the case was to go over until Tuesday. White, acting on that understanding, had none of his witnesses there; and Mr. Shumate, in the absence of his client and his witnesses, would have been poorly prepared to try the case if he had gone to the court house, even if he had been free from sickness himself. Now, it is readily perceived from the testimony that the injustice which has been done to the defendant, White, in this case, was occasioned by the special judge being unac quainted with the agreement between counsel, in which Judge Harvey says he acquiesced. If Judge Harvey had been on the bench on Monday morning, that agreement would have been enforced, and the case would not have been called for trial until Tuesday; and, if White did not then have his witnesses present, it would have been his own fault, and he could not be heard to complain, as he is now doing, as we think with good cause.

The case of Mason v. McNamara, cited by counsel for the plaintiff in error (57 Ill. 274), states the law thus: "The well-settled practice in this State has been liberal in setting aside defaults at the term at which they were entered, when it appears that justice will be promoted thereby. The practice has not been so rigid as to require the party moving to set the default aside to bring himself within the strictest rules which govern applications in equity for new trials at law. In such cases the object is that justice be done between the parties, and not permit one party to obtain and retain an unjust advantage.' Also, in Watson v. Railroad Co., 41 Cal. 17, the court says (page 20): "Applications of this character are addressed to the discretionthe legal discretion-of the court in which the default occurred, and should be disposed of by it as substantial justice may seem to require. Each case must be determined upon its own peculiar facts, for perhaps no two cases will be found to present the same circumstances for consideration. As a general rule, however, in cases where, as here, the application is made so immediately after default entered that no considerable delay to the plaintiff is to be occasioned by permitting a defense on the merits, the court ought to incline to relieve. The exercise of the mere discretion of the court ought to tend, in a reasonable degree, at least, to bring about a judgment on the very merits of the case; and, where the circumstances are such as to lead the court to hesitate upon the motion to open the default, it is better, as a general rule, that the doubt should be resolved in favor of the application." In Riley V. Emerson, 5 N. H. 531, it is said by the court: "Where counsel have suffered a verdict against a party without a trial by a mistake, a review may be granted." Again, in Neve v. Milns, 29 Eng. Law & Eq. 306, a cause was set down for

trial at the first sitting in Michaelmas term, and, no one appearing for the defendant, was taken at these sittings as an undefended cause, and verdict entered for the plaintiff. Upon affidavit by the defendant's attorney that he was under the impression that the cause would be tried at the second sitting in that term, and had made a memorandum according in his note book, the court granted a new trial. So, also, in De Roufigny v. Peale, 3 Taunt. 484, a new trial was granted where a cause had been undefended through mistake of the attorney. So, in Greatwood v. Sims, 2 Chit. 269, where in the call of the docket a case had been reached sooner than expected by the attorney, and went undefended on that account, a new trial was granted by Lord Chief Justice Ellenborough. Also the case of Bennett v. Jackson, 34 W. Va. 62, 11 S. E. Rep. 734, presents some features similar to the one under consideration. In that case it appears an action was brought in the county court in 1875. Two years thereafter it was transferred to the circuit court. No order except continuances was made in it after such transfer. The judge of said circuit court could not preside at the trial, and in 1887 the plaintiff, in the absence of the defendant and his counsel, caused a special judge to be elected; and, without the knowledge of the defendant, the case was tried, and a verdict and judgment rendered for the plaintiff. The defendant, being notified of such judgment, moved the court to set the same aside, because of the facts above stated; and, upon his affidavit alleging surprise and the full payment of the debt sued on, the circuit court set aside the judgment, and awarded the defendant a new trial, and it was held no error. In that case, as in this, there was the interposition of a special judge, who tried the case in the absence of the defendant, who was surprised by the appointment of the special judge, and had made no preparation for trial on that account, knowing that the regular judge would not try the case.

In the case we are considering, it appears that the regular judge would not have tried the case on Monday, the day on which it was tried if he had been on the bench, and the defendant knew he would not, on account of the agreement between counsel in his presence, which the regular judge says was acquiesced in by him, that the case should not be tried until Tuesday. The defendant, in his testimony, claims that he had a good defense to the action, and could have shown that he was not indebted to the plaintiff. The case under consideration presents some peculiar features, and, if the verdict and judgment are allowed to stand, the facts indicate that injustice will be done the defendant. Can we say that, under the circumstances, blame should attach to him for not being present on Monday with his witnesses and with his counsel, prepared for trial? The defendant testifies that his impression was, from the conversation he heard, that Judge Harvey would be back on Monday, and that the

special judge would not take up his case, and that he did not know that Mr. Turley would sit on the bench, or that Mr. Shumate, his attorney, would refuse to try a case before him; that he was very much surprised when he heard the case had come off, and had made no arrangements to come. Considering these circumstances, it is apparent that the defendant has been deprived of an opportunity of presenting his defense, by reason of the special judge being unaware of the agreement made by counsel, in the presence of the regular judge; and by acting upon that agreement, which was made in his presence, the action of the special judge in hearing the case at a different day from the one agreed upon, without notice to the defendant, and in the absence of himself and witnesses, was such a surprise upon him that the motion to vacate the judgment, set aside the verdict, and award him a new trial, should have prevailed. The judgment complained of is reversed, the judgment vacated, the verdict set aside, and a new trial awarded, with costs to the plaintiff in error.

NOTE.-New Trials-Surprise-Absence of Party. -The principal case establishes the rule, that a clear case of mistake, or misinformation, as to the time for the trial of a cause, entitles the defendant to an order vacating the judgment and allowing him a new trial on the ground of surprise, provided the mistake or misinformation was not due to his negligence, and it appears that the defendant has a meritorious defense to the action. Cases in which "office judgments," or judgments for want of plea, have been opened and defendant allowed to plead, should be carefully distinguished from those in which, like the principal case, pleas or answers have been filed, and the cause put on the trial calendar. In the former class of cases the opening of the default is, in many of the States, almost a matter of course. The motion is addressed to the sound discretion of the court, and its action will not be disturbed unless a strong case is presented. Edsall v. Ayres, 15 Ind. 286; Cruse v. Cunningham, 79 Ind. 402. The burden is on the defendant, moving for a new trial, and he must furnish clear and indubitable proof of the alleged surprise. Spalding v. Crawford, 3 App. Cas. (D. C.) 361. The defendant's affidavit in support of the motion must show a meritorious defense, and that his presence would have produced a different result. Ferrill v. Marks, 76 Ga. 21. When a cause is liable to be called for trial at any time during the term, no particular day being set for the trial, the law devolves on the parties the duty of remaining present, until, by some positive action of the court, the cause is disposed of, or a disposition thereof is made by agreement with the adverse party. Speed v. Cocke, 57 Ala. 209. The parties, though non-residents, must advise themselves of the rules and practice of the court, as to fixing days for the trial of causes. Dusy v. Prudom, 95 Cal. 646, 30 Pac. Rep. 798. A new trial may be refused in the discretion of the court, where the defendant's default was caused by his attorney's negligence in failing to keep himself advised of the state of the trial calendar. Walsh v. Walsh, 114 Ill. 655. The negli gence of the attorney will be imputed to his client, 1 Black, Judgments, § 341. For an exception to this last rule see case of Searles v. Christiansen (S. Dak.), 60 N. W. Rep. 29. A court in granting a new trial on

the ground of surprise, will be governed by precisely the same principles as a court of equity in relieving against a judgment in such cases. Renfro v. Merryman, 71 Ala. 195. But see the principal case on this point.

Illustrations-New Trials Granted.-The case of Ratliff v. Baldwin, 29 Ind. 15, 92 Am. Dec. 330, was very like the principal case. There the defendants had been in attendance upon the court with their counsel until informed by the judge that the case would not be tried at that term, and they thereupon returned to their homes. At a subsequent day an attorney of the court was appointed temporary judge in place of the regular judge, and he allowed the default. A new trial was granted. Failure to attend by reason of public notice from the presiding judge that no cases will be tried on a certain day, is excusable. Massey v. Allen, 48 Ga. 21. So where counsel was absent in consequence of an announcement by the presiding judge that there would be no peremptory call of the calendar. Anderson v. Scotland, 17 Fed. Rep. 667. A party who is misled by a remark of the court as to the time when his case will be called is entitled to a new trial. Sanders v. Hall, 37 Kan. 271; Clark v. Jarrett, 58 Tenn. 467; Edsall v. Ayres, 15 Ind. 286. The absence of the defendant in consequence of the irregular calling of the docket is ground for a new trial; and defendant need not show that he made any preparation, or that a different result would probably occur on another trial. Price v. Ford, 7 T. B. Mon. (Ky.) 399. This rule was applied in a case in which the court skipped a number of cases without continuing them. Donallen v. Lenox, 6 Dana (Ky.), 89. But this rule does not apply if it appear that the case was not heard at an earlier date than if the docket had been regularly called. International, etc. Ry. Co. v. Miller (Tex. Civ. App.), 28 S. W. Rep. 233. Where the term of court had been changed to an earlier date, and defendant's attorney, overlooking that fact, relied on the judge's assurance at a former term that nothing would be done in the case without notice to him, a new trial was granted. Jean v. Hennessy, 74 Iowa, 348; Buena Vista Co. v. Railroad Co., 49 Iowa, 657. So, where defendant arranged with the clerk of the court to notify him by telephone when his case would be called, which was done, but through a slight unnecessary delay defendant did not reach the court room until after the jury had assessed the plaintiff's damages. Hinman v. Hamilton Paper Co., 53 Wis. 169. New trials were granted in the following cases: In consequence of the fact that defendant left the court room because he had been informed that the judge had been of counsel in the case, and on that account no trial would be had at that term. Cruse v. Cunningham, 79 Ind. 402. Because of the fact that judgment was rendered at a special term, of which defendant had no notice. Joslin v. Coffin, 5 How. (Miss.) 539. Because of the failure of the clerk of the court to notify defendant of the time fixed for trial, according to his promise. Thompson v. Sharp, 17 Neb. 19; Seymour v. Miller, 32 Conn. 402. Because of counsel's inadvertent ignorance of the time set for trial. Dodge v. Ridenour, 62 Cal. 263. Misunderstanding of counsel as to the day fixed for the trial of the cause. Goodrich v. Handy (Ga.), 16 S. E. Rep. 108. Change of date for trial to a date one day earlier, without notice to the defendant. Leighton v. Dixon, 42 Kan. 616, 22 Pac. Rep. 732. Conversation with plaintiff's attorney in consequence of which defendant's attorney was led to believe that trial would be

postponed. Symons v. Bunnell, 80 Cal. 380, 22 Pac. Rep. 193.

New Trial Refused.-The following grounds were held insufficient to sustain a motion for a new trial on the ground of surprise: The unexpected docketing of a cause, after a party had left court with his attorney and witnesses, he having had the right himself to docket the case. Renfro v. Merryman, 71 Ala. 195. Defendant's leaving the court in consequence of his belief from the state of the docket, and the opinion of others, including the presiding judge, that his case would not be reached at that term. White v. Ryan, 31 Ala. 400; Yelton v. Hawkins, 2 J. J. Marsh. (Ky.) 1. Miscalculation of the time at which a case will be reached on regular call of the docket. War. ren v. Pentell, 68 Ga. 428; Simonton v. Buchanan, 58 Tenn. 467; Desnoyer v. Buchanan, 4 Minn. 515; Davis v. Winants, 18 N. J. L. 306; McAvley v. Lockert, Humph. (Tenn.) 29; Brevard v. Graham, 2 Bibb (Ky.), 177; Sayer v. Finck, 2 Caines (N. Y.), 336; Stout v. Colver, 6 Mo. 254. Defendant's understanding that the criminal docket was being called, and that the court was not engaged in the trial of civil causes. Alamo Fire Ins. Co. v. Lancaster (Tex. Civ. App.), 28 S. W. Rep. 126. Ignorance of statutory time of holding court. Hartford, etc. Ins. Co. v. Vanduzen, 49 Ill. 489. Reliance on statement of plaintiff's attorney that a case then on trial in which he is engaged will occupy a certain time. Green v. Bulkley, 23 Kan. 130. An understanding between the parties that a day for trial should be fixed by agree. ment, such agreement not having been consummated before the regular call of the docket. Moody v. Har per, 53 Miss. 465. Washington, D. C.

CHAPMAN W. MAUPIN.

JETSAM AND FLOTSAM.

Post. p. 265

"VIEWS" AND EVIDENCE.

The CENTRAL LAW JOURNAL for July 16, 1897, contains an article entitled: "Is What a Jury Sees Evi dence When Ordered out by a Court to Make a View of Premises?" It appears that there has been some little controversy among text writers as to whether what the jury sees under such circumstances is to be classed as evidence or as simply an aid to the understanding of the evidence actually given in court. The author of the article in the CENTRAL LAW JOURNAL shows that, according to a number of decisions of various courts, what a jury sees under such circum stances is theoretically not to be ranked as evidence. The following language from the case of Close v Samm, in the Supreme Court of Iowa, 27 Iowa, 503, will serve as an example of such judicial utterances:

"This inspection by the jury was ordered under the revision, section 3061. 'Whenever, in the opinion of the court, it is proper for the jury to have a view of the real property which is the subject of controversy, or of the place in which any material fact occurred, it may order them to be conducted in a body, under the charge of an officer, to the place, which shall be shown to them by some person appointed by the court for that purpose; while the jury are thus ab sent, no person other than the person so appointed shall speak to them on any subject connected with the trial. The question then arises as to the purpose and intent of this statute. It seems to us that it was to enable the jury, by the view of the premises or place. to better understand and comprehend the testimony

of the witnesses respecting the same; and thereby the more intelligently to apply the testimony to the issues on trial before them, and not to make them silent witnesses in the case, burdened with testimony unknown to both parties, and in respect to which no opportunity for cross-examination or correction of error, if any, could be afforded either party. If they are thus permitted to include their personal examination, how could a court ever properly set aside their verdict as being against the evidence, or even refuse to set it aside without knowing the facts ascertained by such personal examination by the jury? It is a general rule, certainly, if not universal, that the jury must base their verdict upon the evidence delivered to them in open court, and they may not take into consideration facts known to them personally, but outside of the evidence produced before them in court. If a party would avail himself of the facts known to a juror, he must have him sworn and examined as other witnesses."

The distinction taken in this and other cases may be sound from the standpoint of pure theory. But it must be clear that in practice the distinction will amount to little or nothing, no matter how explicitly the court may instruct the jury that the view is intended as an aid to the comprehension of evidence and its results are not evidence itself. Indeed, the view will necessarily often be more influential in determining the verdict than the evidence proper. It would, for instance, be idle to expect a jury to go only according to the evidence and disregard the effect of their view, where a question was raised whether certain premises were swamp or dry land on a date previous to the trial, as was the case in Wright v. Carpenter, 49 Cal. 607. There the court said that instructions given on the trial were erroneous in so far as they authorized the jury to take into consideration the result of their own examination of the land, in determining its character as swamp, overflow or otherwise. But if the trial court had correctly instructed the jury that the view was simply to enable them to understand the evidence, it is highly improbable that the jurors could have eliminated the evidence of their senses as a potential factor in determining their verdict.

It must be obvious that the question of real substantial interest is whether the discretion vested in trial courts to order views by juries (N. Y. Code Civil Procedure, section 1659) should be frequently or sparingly exercised. Conceding that occasional injustice may result, we are inclined to believe that in the long run the best interests of the greatest number will be subserved by allowing a view to be had by the triers of facts whenever it may fairly be said to be necessary for a full comprehension of the evidence. The jury in such cases will undoubtedly derive impressions which will not get into the record nor appear in the case on appeal. But these are not unlike certain impressions of the personalty and appearance of witnesses, which are not required to be definitely formulated and, of course, do not appear in the record, but which jurors may legitimately give weight to in passing upon questions of veracity. According to the weight of authority the theoret ical distinction between evidence and an aid to the comprehension of evidence seems to exist. And it would therefore seem to be the duty of trial courts to instruct juries as to such distinction. As above indicated, the distinction will not be apt to be of much practical effect, but we do not think such consideration should dispose trial courts to incline against granting views in proper cases. Of course, if the

jurors should talk with outsiders at the scene of the view about the case, another question would be presented. See People v. Gallo, 149 N. Y. 106.-New York Law Journal.

HUMORS OF THE LAW.

A South Carolina trial justice recently made the following disposal of a case that came before him: "I am acting in a dual capacity in this case-sitting as a jury to try the facts, and as a judge to expound the law. As a jury I am unable to agree upon a verdict on the facts, and, therefore, as a judge I order a mistrial."

A Frenchman was convicted of killing his motherin-law. When asked if he had anything to say for himself before taking sentence, he said, "Nothing, excepting I lived with her twenty-one years and never did it before."

........122

.12, 55, 71, 97 ...35, 44, 73

TEXAS 30, 37, 40, 42, 51, 53, 61, 69, 70, 78, 81, 90, 95, 96, 101, 106, 115, 120

UNITED STATES C. C...... ....64, 110, 111 UNITED STATES C. C. OF APP.................26, 75, 98, 108 VIRGINIA.......................... ..23, 24, 50, 77, 84, 121 WISCONSIN..........6, 8, 9, 17, 21, 27, 31, 76, 83, 100, 123, 126

1. ADMINISTRATION-Account-Charges.-Under How. Ann. St. § 5958, providing that an executor shall be allowed "all necessary expenses in the care, management, and settlement of the estate, and for his servi ces such fees as the law provides, together with all extra expenses," an executor may procure the aid of legal advisers, when necessary, and bind the estate for the payment of a reasonable compensation for their services.-JACKSON V. LEECH'S ESTATE, Mich., 71 N. W. Rep. 846.

2. ADMINISTRATION--Allowance to Executor.-An allowance to an executor for extraordinary services in the administration of the estate is within the discretion of the trial judge.-DOTY V. KING'S ESTATE, Mich., 71 N. W. Rep. 1080.