The plaintiff, as the administrator of the estate of Alexander Dobson, deceased, rendered, under oath, a final account of his administration, to which exceptions were taken by Mary Dobson, one of the heirs of the deceased. On the fourth of June, 1876, a hearing upon the exceptions was had before the county judge, who then took the matter under advisement, and on the seventh, he rendered a decree disallowing about six hundred dollars of the plaintiff’s credits, and on the twelfth, he left the county and was temporarily absent until the tenth of August following.
The plaintiff had no knowledge of’ the disallowance having been made until after the judge had left the county, and then endeavored to obtain an appeal from this decree to the district court, but by reason of the absence of the judge from the county, he, without any fault or negligence on his part, was prevented from filing his application in writing for an appeal within the time required by the statute.
Upon the return of the judge, the plaintiff filed his application, etc., and caused a transcript of the record and proceedings of the case to be filed in the district court, which appeal, so taken and filed in the district court, was, on motion of the defendants, dismissed for the reason that the appeal was not taken within the ten days required by the statute. These facts are all admitted by general demurrer to plaintiff’s petition. The demurrer was sustained in the court below and the cause dismissed. The plaintiff asks in'his petition a new trial, or such relief as in equity he is entitled to.
It was strongly urged in the argument for plaintiff *299that the decree of the county court should be vacated and a new trial granted. As a general rule, equity will grant á new trial in cases of newly discovered evidence, surprise, fraud, or when a party from some unavoidable circumstance, and without any laches or want of reasonable diligence on his part, is deprived of the means of defense; but the case át bar is not one of this sort. It is one in which the party, not by any default or laches on his part, but by reason of the absence of the officer, was deprived of his appeal within the time required by statute. In such case, we think the proper course is to have the appeal entered and treated in the appellate court as though it had been taken within the time prescribed by statute. The maxim is, aotus ou/t'iae nemmem gra/oabit.
In Clapp v. Graves, West. L. Monthly, Nov. No., 1859, the party applied for an order for appeal at the proper time, but the court did not announce its decision until the time had passed. A motion to vacate the order was denied. Daley, J., said: “It is a general rule, when an act is to be done within a certain time, in which the concurrence of the court is necessary, and the party has done all that he is required to do to obtain the decision of the court, he is not to suffer by the court’s delay.”
In Pearson v. Rawlings, 1 East., 405, Lord Kenyon said that, “ it is by no means unusual to make entries of judicial acts nunc pro timo by leave of courfj”; and Powell, in his work on Appellate Proceedings (p. 420), observes that if the court below refuse to make such entry in a proper case “ the appellate court would treat the case as though it had been done.”'
In Louderback v. Boyd, 1 Ash., 880, it is held that where a party has been- prevented from complying with the legal requirements to obtain an appeal by the conduct or default of the justice, the appeal may be made after the expiration of the time required by the statute *300and the transcript be filed after the term. Noble v. Houk, 16 S. & R., 421.
The law will not permit the plaintiff to be prejudiced in his rights by reason of the absence of the judge. It gives him ten days within which to take his appeal; but by reason of the absence of the judge he was prevented from obtaining his appeal within that time. He was entitled to do this after the return of the j udge. Therefore, the decree of the court below in this case is reversed; plaintiff’s appeal taken from the decree of the county court and dismissed by the district court at the May term, 1877, must be reinstated and the case be proceeded in to trial, with the same effect in all respects as though the appeal had been taken and completed within the time required by the statute.
Decree accordingly.