Keister v. McDavid, 970.
| Decision Date | 21 November 1950 |
| Docket Number | No. 970.,970. |
| Citation | 76 A.2d 776 |
| Parties | KEISTER, v. McDAVID et al. |
| Court | D.C. Court of Appeals |
L. J. H. Herwig, Washington, D. C. (William J. Bartle, Washington, D. C., on the brief), for appellees McDavid.
Before CAYTON, Chief Judge, and HOOD and CLAGETT, Judges.
Keister and Kaden were sued for wages for carpenter work. The claim was for less than $500 and tinder the rules of the trial court answers were not required. Kaden filed a cross-complaint against Keister, claiming damages of $3,000 for Keister's failure to complete a construction contract in connection with which plaintiffs' work was performed. Keister filed no answer to the cross-complaint although required to do so by rule of court; but no effort was made to take a default against him. The case was several times set for trial but was continued by consent of the parties. It was finally set for trial more than two years after it was filed and Keister, apparently for the first time, engaged counsel. Counsel secured a continuance of the case until May 26, 1950. Thereafter by praecipe signed by counsel for all parties the case was continued to June 26 "for trial or voluntary dismissal" meaning apparently that the case would be tried on that date unless settlement was reached in the meanwhile. On June 26 when the case was called for trial neither Keister nor his counsel was present and the trial commenced in their absence. Trial was not completed on that date and was continued over to June 28. On June 27 one of plaintiffs' counsel informed Keister's counsel of the situation and when trial was resumed on the 28th Keister and his counsel appeared. Counsel explained that his previous absence was due to the fact that he had not been notified of the trial, and stated that he was prepared to defend on behalf of Keister and would not seek to cross-examine on any of plaintiffs' case already heard. Counsel also sought permission to file an answer to Kaden's cross-complaint. The court refused to permit the filing of such answer and refused to permit Keister or his attorney to participate in the trial, and further ordered a default against Keister on Kaden's cross-complaint, subject to ex parte proof.1 The trial resulted in a finding and judgment for plaintiffs against Keister. Keister has appealed.
According to an affidavit of Keister's attorney, he did not appear at the commencement of the trial because "inadvertently" the date was not noted on his calendar and he had heard nothing from the other attorneys. Having joined with other counsel in setting the case for trial, he was entitled to no further notice and was under the duty of being present on the date set. Mere inadvertence in keeping his own calendar is no...
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