The imposition of what in effect is a fine of $10,000 is a severe penalty for failure to proceed with the trial of the case when reached, and can only be sustained if the defendant was without excuse.
The defendant relied upon the promise of a material witness to. attend at the trial, and such witness being without the jurisdiction of the court, his attendance could not be enforced by subpoena. That every effort was seasonably made to bring him from St. Louis agreeably to his promise was made to appear; as was the fact that on the day that the default was taken the witness was on his way to attend the trial. Rule 7 of the Special Rules for the Regulation of Trial Terms in the first judicial district requires that a case When it appears upon the day calendar shall be tried ‘‘ unless it appears * * * that in consequence of the happening of an event since the cause was set down for trial, the trial cannot with justice to one of the parties proceed.”
Although the 'defendant did not bring itself strictly within the letter, it did within the spirit of the rule by furnishing proof that the absent witness when seasonably notified did not according to promise immediately respond; and to obtain his presence a short adjournment was asked, to which the plaintiff was willing to assent. UpOn these facts we think it would.be a harsh enforcement of the rule to mulct the defendant in the sum of $10,000.
*595The order is accordingly reversed upon condition that the defendant pay the taxable costs, including a trial fee and the disbursements of the trial, and that the case be put back on the call calendar and set down for trial at such time as the justice holding that term shall direct.
No costs on this appeal.
Present—Van Brunt, P. J., O’Brien, Ingraham, McLaughlin and Hatch, JJ.
Order reversed upon condition that defendant pay the taxable costs, including a trial fee and disbursements of the trial, and that the case be put on the call calendar and set down for trial at such time as the justice holding that term shall direct. No costs on this appeal.