15 Kan. 368 | Kan. | 1875
The opinion of the court was delivered by
The plaintiffs in error were sued upon a promissory note. Mehnert filed an answer in person, alleging part payment to the amount of $166.10, and that after the maturity of the note he and his co-defendant had given a mortgage due in twelve months as security, and that this time had not passed. They made no appearance at the trial, and judgment was rendered for the face of the note and interest. On the same day they, by an attorney, filed a motion to vacate the judgment, and grant them a new trial, on the ground that they were prevented from making their defense by “accident, which ordinary prudence could not have guarded against, and unavoidable misfortune.” This motion was overruled, and this is the error complained of. Mehnert’s affidavit was the only testimony offered upon said motion. He testified that he filed th§ answer, and that it was true, that he lived twelve miles from Fort Scott, where the court was in session; that he had a large amount of stock, and no male help on his place, and was consequently obliged to be home every night; that in order to be present in court in time on that morning he rose between three and four o’clock, attended to his home duties, and started with his team for Fort Scott between five and six o’clock, drove with all possible dispatch, and made no stoppages on the road; that he reached the court-house about ten o’clock, and found that the case had been called and disposed of a few. minutes prior thereto; that
The judgment will be affirmed.