Zimmerer v. Fremont National Bank

• Decision Date: 09 February 1900
• Docket Number: 9,101
• Citation: 81 N.W. 849,59 Neb. 661
• Parties: FERDINAND ZIMMERER AND EMMA ZIMMERER v. THE FREMONT NATIONAL BANK
• Court: Nebraska Supreme Court

81 N.W. 849

59 Neb. 661

FERDINAND ZIMMERER AND EMMA ZIMMERER v. THE FREMONT NATIONAL BANK

No. 9,101

Supreme Court of Nebraska

February 9, 1900

ERROR from the district court of Dodge county. Tried below before MARSHALL, J. Affirmed.

AFFIRMED.

Hamer & Hamer, for plaintiffs in error, argued that it was an accident which might come to any busy lawyer, which came to counsel for the defendants Zimmerer, and it was without fault upon his part or upon the part of his clients. The motion for a new trial should have been sustained. See Horn v Queen, 4 Neb. 114; Smyth v. Castler, 16 Neb 266; Horn v. Queen, 5 Neb. 472; Parker v Kuhn, 19 Neb. 394; Hendrickson v. Hinckley, 17 How. 443; Roggencamp v. Dobbs, 15 Neb. 621; Leiby v. Heirs of Ludlow, 4 O. 493; Huntington & Macintyre v. Finch & Co. 3 O. St. 448; Bank v. Doty, 9 O. St. 505; Thompson v. Sharp, 17 Neb. 72.

Due process of law requires an orderly proceeding adapted to the nature of the case in which the citizen had an opportunity to be heard, and to defend, enforce and protect his rights. A hearing or an opportunity to be heard was absolutely essential. See Black, Constitutional Law, sec. 212; Stuart v. Palmer, 74 N.Y. 183.

Fred W. Vaughn, for defendant in error.

OPINION

HOLCOMB, J.

The record in this case discloses that a trial was had in the absence of the defendants and their attorney. A motion for a new trial, assigning many grounds therefor, was filed and overruled by the court. If defendants were entitled to a new trial for any cause, it was on account of "accident or surprise, which ordinary prudence could not have guarded against," and which was properly assigned as one of the grounds for a new trial. Consideration of no other question will therefore be undertaken. Affidavits in support of the motion and counter-affidavits were filed and considered on the hearing. The defendants and their attorney were non-residents of the county in which the action was pending. It is made to appear from the affidavit of plaintiffs' counsel that the case had been continued twice out of courtesy to the defendants' counsel, and that at the beginning of the term at which a trial was had the case stood second on the trial list, but, to accommodate the defendants' counsel, and by consent of both parties in open court, the case was placed on the trial list as three and one-half, and it was agreed between counsel that it should not be tried before the following Thursday. On Thursday the case was reached and postponed twice, upon the assumption that the defendants and their counsel might come to the place of trial on incoming trains from the direction in which they resided. They not appearing, a trial was had in their absence. It also appears from the showing made by the defendants for a new trial that their attorney, after the case had been placed on the trial list for trial as above mentioned, made an arrangement with a resident attorney to advise him by telegram when the case was about to be reached for trial, and then left for another part of the state. Neither the counsel for the plaintiff nor the court had any knowledge of the private arrangement referred to. On the day of the trial the resident attorney was called away on business, and the case was thus allowed to proceed to a trial without the defendants being represented, either in person or by counsel. It appears that the attorney for the defendants had in the meantime received notice of the pendency of another trial in another county, a county seat contest, in a distant part of the state, where he went and was engaged in the trial of the case last mentioned for several days and until after the trial of the case at bar. No further inquiry was made regarding the trial of this cause, and no steps appear to have been taken to have other counsel represent the defendants therein. In view of what had occurred when the case was placed on the trial list, counsel for the plaintiff and the court were justified in concluding, as it seems they did, that the case had been abandoned by the defendants. The resident attorney had in no way been employed in the case, and evidently looked upon his promise to notify the defendant's attorney by telegram when the case was about to be reached for trial as not being of such a nature as to require him to inconvenience himself or neglect his own business for that purpose. It was a slight courtesy which he was willing to extend, presuming that he would be in court and thereby have knowledge of the progress of the cases preceding this one.

In view of the foregoing we are to determine whether error was committed in the overruling of the motion for a new trial. At the threshold of the inquiry, it is proper to observe that it is a firmly established principle of law that a motion for a new trial on the ground of accident or surprise is addressed to the sound discretion of the trial court in the furtherance of justice, and unless there appears to be an abuse of that discretion, the ruling upon such a motion will not be disturbed by a reviewing court. In Tingley v. Dolby 13 Neb. 371, 14 N.W. 146, it is said: "Motions for a new trial are addressed to the sound discretion of the court, and this rule prevails whether the ground of the motion is that the verdict is against the weight of evidence, or for accident or surprise, newly discovered evidence, or like cause. But this discretion is a legal discretion." See Sang v. Beers, 20 Neb. 365, 30 N.W. 258; Green v. Bulkley, 23 Kan. 130; Hayne, New Trial & Appeal, sec. 86. It is said in McGuire v. Drew, 83 Cal. 225, 23 P. 312: "The terms 'accident' and 'surprise,' though not strictly synonymous, have, as used in legal practice, substantially the same meaning, as each is used to denote some condition or situation in which a party to a cause is unexpectedly placed, to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against." The attorney for the defendants, when in court at the beginning of the term, was apprised of the fact that the case would probably be reached by the Thursday following or sooner, and there appears to have been an understanding that it should be, in effect, set for trial on that day. It appears from one of the affidavits that the trial judge suggested to counsel that he procure the assistance of a resident attorney to represent the defendants in the event that he should not...