(dissenting):
The judgment sought to be set aside was entered on the 25th of February, 1879, the notice of which entry was not served, however, until the 4th of June, 1879. The motion to set it aside was not made until July, 1880, more than one year after notice of its existence had been served, as already stated.
*620Upon the presentation of the motion the plaintiff sought to show that the notice had not been served by negative evidence, which was answered by affirmative evidence on the part of the plaintiff showing the service of the notice.
The difficulty seems to have arisen from the fact that the plaintiff’s attorney had substantially abandoned the office which he had formerly occupied, and to which, according to designation, the papers in the case were to be sent. No notice of the abandonment seems to have been served on the attorney for the defendant; and it was not proved that his attention was called to it in any way, and, therefore, it does not appear that he had any notice of it. The object of this struggle, doubtless, was to show that the time limited by the Code under sections 724 and 1282 had not, in fact, expired, which would have been the case had notice of the judgment not been served, as alleged, on behalf of the defendant. This dispute seems to have been properly disposed of in the court below in favor of the defendant. The affirmative proof on all the rules of evidence is entitled to the superior consideration.
The judgment was obtained under what may be regarded as peculiar circumstances. The cause was noticed for trial for February, 1878, and, it would seem, by both parties. In June, 1878, a motion made by the defendant was denied, with ten dollars costs, which were not paid. The action was reached upon the calendar in February, 1879, and the plaintiff failing to appear default was taken and judgment docketed for costs. The plaintiff insists that the defendant was under a stay, according to the provisions of section 779 of the Code, for having omitted to pay the costs awarded against him, and that the court, therefore, had no power to grant the judgment which was directed. This view is erroneous. The plaintiff having noticed the cause for trial had a right to move it on, and the defendant had the right to prepare for the trial; and if he desired to avoid the judgment by default it was his duty to watch the progress made upon the calendar and be in court when the cause was called. If the plaintiff desired to avoid the default it was equally his duty to watch the progress upon the calendar and appear in court to urge his cause. Having noticed the cause for trial it was brought on upon his motion, and not upon the motion of the defendant, and the latter had the right to avail himself of all the advantages *621arising from tbe negligence of tbe plaintiff. The plaintiff’s attorney seems to have relied upon the stay as one effectually preventing tbe defendant from resisting bis movements in tbe. cause and, therefore, to have omitted to watch tbe progress upon tbe calendar, which is tbe chief reason assigned for not knowing of tbe call of tbe case and tbe disposition made of it at tbe circuit. Tbe result must be regarded as one occasioned by negligence, because the plaintiff’s attorney appears to have abandoned tbe case, if not absolutely, at least to such an extent that be knew nothing of its disposition for more than a year after it bad been disposed of at circuit by a judgment upon default. I think we are not called upon under such circumstances to relieve tbe plaintiff from tbe judgment which was thus obtained, particularly as it does not prevent him from bringing another action.
Tbe order should, therefore, be affirmed, with ten dollars costs and tbe disbursements of this appeal.
Order reversed, motion granted, without costs.