This is an action of ejectment, and issue was joined by the filing of the answer. The cause came on for trial on ¡November 2d, 1870. The defendants on that day were present at the Court, in Stockton, where the action was to be tried; but their counsel, who resided in San Francisco, was unable to attend the Court, by reason of the sickness of two members of his family—so extreme in its character that the attending physician forbade him to leave, he being of opinion “ that no prudent man could think of leaving his family for any length of time in the condition they were in.”
On the morning of the day upon which the trial came on the defendants, for the first time, ascertained that their counsel could not attend, and the reason why he could not, and at once, upon receiving a telegraphic dispatch from him, made application to the Court to continue the cause, after making an ineffectual effort to obtain other counsel, they having no opportunity to prepare the case for the defense. The Court refused to continue the ease, even for a short time, to allow preparation for a defense by new1 counsel, if any could be found; but compelled the defendants to proceed, in the absence of their counsel, under the circumstances stated. The defendants swear that they were utterly unable to conduct the defense of the action themselves, and wholly unable to procure counsel, for the reason that no time whatever was allowed for counsel to prepare for trial. The defendants also swear that they have fully and fairly stated the facts of the case to their counsel, and that he has advised them that they have a defense upon the merits. The counsel also swears that he is, and for several years has been, acquainted with all the facts of the „case; that he has been the counsel for one of the defendants for about six years; and that he believes that the defendants have a substantial defense upon the merits of the action, *629and that he has so advised them. The defendants being, under these circumstances, compelled to go to trial, judgment was rendered against them; and they thereupon moved for a new trial, upon the ground of accident and surprise; and their motion was supported by affidavits showing the foregoing facts in substance. The affidavits were not contradicted; but the motion was, nevertheless, denied, and the defendants brought this appeal from the order denying the motion.
I think that the Court erred in denying the motion for a new trial. The affidavits show that the defendants have a meritorious defense to the action. They were not in default in the slightest degree. There was no lack of diligence on their part. They were ready for trial, and in attendance upon the Court with their witnesses. Everything that they could do of themselves, in the way of preparation, had been done; and but for the sickness in the family of their counsel they would have been ready to proceed to trial; and even when it was ascertained that he could not, for that reason, attend upon the Court, they only desired time for some other counsel to familiarize himself with the defense. This, at least, should have been allowed them.
The order denying a new trial is reversed, and the cause remanded; the remittitur to issue forthwith.
[The defendants moved the Supreme Court to vacate a writ of habere facies, which had been issued out of the Court below.—Reporter.]
By the Court, Wallace, J.:The order denying a new trial in this cause having been reversed, the motion made by the defendants in this Court, to vacate the writ of habere facies issued by the Court below, is denied. The application in that behalf should be made to the Court below.