Lead Opinion
Field, C. J. and Cope, J. concurring.
The judgment is affirmed. We think the complaint sufficient within the rulеs laid down in Payne and Dewey v. Treadwell (
2. The stipulation prima facie was sufficient tо maintain the action. The effect of it is to аdmit that the title was in Hetherington before the entry of defendant; that the defendant entered under him; and that she afterwards set up claim to the prеmises. The effect of these facts, if they had been proved, would be to show title in Hetherington, еntry by his consent, and a holding in contravention of the tenancy. It is true that the stipulation adds to the admission of these facts that it is not designed to admit a tenancy; but such is the legal effect of the facts expressly admitted; and the qualifying terms have nо effect of excluding the legal conclusions resulting from the admission of specific facts.
3. Thе discretion of the Court cannot be reviewеd in its refusal to set aside the judgment for the cause assigned—the absence of the attorney аt the time of the trial.
Judgment affirmed.
Rehearing
—Cope, J. concurring.
Rehearing denied. It is scarcely necessary to notice the hyper-criticism of thе petition upon the language of the opinion—“ the discretion of the Court below cannot be reviewed in its refusal to set aside the judgment for the cause assigned—the absence of the attornеy at the time of trial.” This language was not designed tо assert the doctrine that this Court did not possess thе power to review the action of the Court below on such applications, but merely that the facts of this case did not warrant such interference. The meaning of the statement is, that this Cоurt cannot, in consistency with the rules of law in such cases, interpose—not because we hаve no jurisdiction of such matters, but because the matter invoked is improper, and therefore not warranted by law, under the facts of the cаse. To hold that an attorney can go off when he knows his case is set for a particular dаy, to try a case in another and distant Court, without making some arrangement in respect to the first сase, or for having it attended to, and then clаim to set aside a judgment obtained against him in the first suit, because of his absence, would lead to consequences too apparent tо require illustration.
The second point insisted upon was fully considered, and we had not, nor have we now, the slightest doubt as to the true intent and meaning of the stipulation.