The judgment of the court was pronounced by
Rost, J.The defendant, being sued by the curator of the succession of Samuel Dalton, deceased, employed counsel, who filed an answer, setting up a large amount of claims in compensation. The defendant and his counsel being both absent when the case was called for trial, it was tried ex parte, and judgment was rendered in favor of the plaintiff for the whole amount claimed. Before the judgment became final, the defendant employed other counsel, and filed a motion for a new trial, supported by an affidavit that, the attorney who filed the answer was in possession of the evidence of the defendant, and was to have attended to the suit; and, secondly, that his absence was unexpected by the defendant and unauthorized by him. The court overruled the application, and the defendant appealed.
As the good faith of the defendant, and the verity of his affidavit, are unimpeached, we consider that he has made out a proper case for relief.
It is therefore ordered that the judgment be reversed,and the case remanded, to be proceeded in according to law; the plaintiff and appellee paying the costs of this appeal.