Ekel v. Swift

47 Cal. 619

Opinion

By the Court:

The ground upon which the application to set aside the judgment below was rested in the main, was the misapprehension of the defendant’s attorney as to the setting down of the cause. It had been set down for trial at the May term, 1873, but was not reached during that term owing to the ill health of the Judge of the District Court. At the following June term the May calendar of trial causes was ifaken up, and the causes undisposed of again set down for trial. The attorney of the defendant did not attend the June term, and the only reason given for his non-attendance' was ill health—not a sudden attack, but the usual degree of indisposition under which he habitually labored and had suffered for more than one year previously to the trial, rendering him, as he says, at times “unable to attend the Court or attend to any business.” The Court was held, and the cause subsequently tried in open Court in the same city in which the attorney resides.

Under such circumstances we cannot disturb the action of the Court below in denying the motion to set aside the judgment.

Judgment and order affirmed. Remittitur forthwith.