SKINNER v. BRYCE

Continuance — Excusable Neglect.

The illness of the family of one of the defendants in an action, so that he cannot be present at the trial of the cause, is a circumstance which may properly be addressed to the discretion of the court upon a motion to continue the cause. But where such defendant is represented by counsel, who has knowledge of the fact, and does not ask for a continuance, but enters into a trial by consent upon the plaintiff's agreeing to permit certain letters to be read in evidence, and in pursuance of the agreement the letters are read, the facts do not present a case of "surprise, mistake," etc., contemplated by the statute, and the judgment will not be vacated.

READE, J.

The sickness of the family of one of the defendants at the time of the trial, so that he could not attend, was a circumstance which might have been addressed to the discretion of his Honor upon a motion to continue. But the defendants' counsel was present, knew of the sickness, did not ask for a continuance, but went into the trial by consent, upon the plaintiff's agreeing to permit to be read in evidence certain letters which he had, and which were in fact read.

When judgment has been rendered against a party by reason of his "surprise, mistake, inadvertence, or excusable neglect," the statute allows the court to vacate it at any time within a year. But this motion (289) was not supported by any of these considerations. It was a trial by consent. And we agree with his Honor that there is no ground for vacating.

PER CURIAM. Affirmed.