Opinion
per Curiam :This cause went to the Superior Court upon appeal from a justice of the peace who had. rendered judgment against appellant. The case pending on such appeal was called for trial on the coming in of the Superior Court Eovember 22, 1901, and dismissed because of the absence of appellant’s attorney. There is an affidavit showing an apparently good defense upon the merits.
It sufficiently appears from the affidavit of an apparently disinterested party and other undisputed evidence, that appellant’s attorney was actually engaged in another cause on trial in the Criminal Court the day when the appeal in this case was dismissed, and that appellee’s attorney was cognizant of the fact. There is evidence further that the latter had agreed to represent the facts to the Superior Court if this case should be called that day, and that he failed to do so. The cause should have been passed under the rules of the Superior Court. While diligence must and should be enforced by the trial courts, appellee is not entitled to profit by conduct such as appears in this case. The judgment must be reversed and the cause remanded.