44 Neb. 230 | Neb. | 1895
The defendant in error sued the plaintiff in error on two promissory notes made by the latter to the former for the Aggregate sum of over twenty thousand dollars. The defense was that these notes had been given to close up a series of loans in which the usurious interest exacted and paid more than equaled the amount of the aforesaid notes. On the 15th day of March, 1892, in the absence of the plaintiff in error, a judgment was rendered against him for the full amount claimed in the petition. This proceeding in error presents for review the refusal of the district court to set aside the above judgment and grant a new trial on a motion for such relief filed April 8, 189S. On the trial bulletin board in February, 1892, of the district court of Douglas county the entries as to this case show: “ 21 — 26, Nat. Bk. Commerce v. Chas. Corbett, P. for Cornish; Feby. 19, case marked P.; 23, foot of call; 24, foot of ■call; 29, P. for Cornish; Mar. 1, P. for Cornish; Mar. 7, foot of call; Mar. 14, foot of .call; Mar. 15, the case was tried and marked from call.” It is not clear what is meant by the expression, “21-26, Nat. Bk. of Commerce v. Chas. Corbett, P. for Cornish.” It was shown by the proofs that
. .There was filed in support of the above described motion an affidavit of Mr. Breen, an attorney for the defendant, by which it was made to appear that the several postponements at the instance of Mr. Cornish were, by affiant, consented to as courtesies extended Mr..Cornish on his request, and, inferentially at least, it was intimated that the defendant should not therefore by Mr. Cornish have been compelled to go to trial when the affiant was necessarily absent from this state. In justification of Mr. Cornish it is but. fair to state that the fincontradicted evidence disclosed that when this case was called for trial on February 15, Mr. Cornish stated that he was willing that a trial should be postponed, and a temporary adjournment had to enable-Mr. Breen to be present. The district judge refused to permit this course to be taken and informed counsel that the case must be disposed of, either by a trial, dismissal, or continuance, whereupon Mr. Cornish elected to have atrial, which thereupon took place with the result above described. Mr. Cornish made affidavit, without contradiction, that on tjhe day following the trial, as he remembered it, he saw Mr.. Breen and stated to him that he would make no objection to the granting -of a new trial in said case provided it. could be set down for immediate hearing; that Mr. Breen did not until April 8, being twenty-four days after the rendition of judgment, make said motion, and that this wastpo late to admit of another trial of said cause at the said term of court. The answer.was signed “Chas. Corbett, by John-P. Breen, Byron G. Burbank, his att’ys.” Mr. Burbank above named wás present at'the final call of this-case for trial on February 15. There was attempted no>
Affirmed.