#### Augusta Young et al. v. Alice Davidson.

1. Motion fob new trial—when withdrawal of counsel not ground for granting. The withdrawal of counsel upon the eve of a trial is not ground for granting a new trial where no motion for a continuance was made and no exception of any kind preserved.

2. Judgment—effect of entry of, in name of deceased party. It is error to enter a judgment in the name of a deceased party.

Action commenced before justice of the peace. Appeal from the County Court of Macoupin county; the Hon. Geobge W. Mubbay, Judge, presiding. Heard in this court at the May term, 1906.

Reversed and remanded.

Opinion filed November 27, 1906.

Walker & Searcy, for appellants.

John Moran, for appellee and pro se.

Mr. Presiding Justice Ramsay

delivered the opinion of the court.

Alice Davidson, in her lifetime, brought suit against Louisa Gunterberg and Augusta Young, before a justice of the peace, for an alleged trespass to her house/hold goods, which suit was taken upon appeal to the County Court of said county, where upon a trial before the court without a jury, said Davidson recovered a judgment in the sum of $75. Augusta Young and Louisa Gunterberg have brought the case to this court upon appeal.

*658No part of the evidence heard by the court is preserved in the record and the case is not before us upon its merits. Appellants made a motion for a new trial which was overruled and a’motion in arrest of judgment which was also overruled, to which action of the court appellants excepted. Error is now alleged in the overruling of each of said motions and the rendering of judgment.

Appellants in support of their motion for a new trial filed affidavits in which they set up in substance the following: That plaintiff in said suit, Alice Davidson, had died on the sixth day of May, 1905, and before the judgment was rendered (which was ■ on the twenty-seventh day of July, 1905); that on the day set for the trial of said cause, April 27, 1905, said Augusta Young was prevented, by severe storms, from reaching the court room; that prior to that time she had employed a competent attorney to represent her in said trial; that such lawyer, when the case was called for trial, withdrew from the cause and left appellants unrepresented in court and that said attorney had failed to have witnesses subpoenaed on behalf of appellants ; that by reason thereof no defense was made in said cause upon behalf of appellants and later, on the twenty-seventh day of July, 1905, judgment was rendered for $75 as hereinbefore stated.

There was no merit in the motion of appellants for a new trial and such motion was properly overruled. Prom the record it appears that the cause came on for trial in regular order on the twenty-seventh day of April, 1905, when leave was given to A. J. Duggan, attorney-for defendants (appellants), to withdraw from the case and that Louisa Gfunterberg, one of appellants, was then present, and that by agreement the cause was submitted to the court for trial without the intervention of a jury, and that the court after having heard all the evidence, took the case under advisement. It also further appears from the record that no motion *659or application for a continuance was made by said G-unterberg at the time of said trial.

Under such circumstances appellants can allege no error in the action of the court in refusing a new trial. The action of the attorney in withdrawing from the cause and leaving- appellants unrepresented was a matter wholly between the lawyer and his client and is one with which the court has nothing to do, especially since no motion for continuance was made. No action was had by the court to which any exception was saved before the court announced its holding úpon the merits of the case.

There was error, however, in the refusal of the court to arrest the judgment. Alice Davidson was shown by the affidavits to have died on the sixth day of May, 1905, while the judgment purports to have been entered in her name on the twenty-seventh day of July, following. The entry of judgment in the-name of a deceased party was error. It was necessary to suggest the death of said Davidson and to have an administrator appointed and enter the judgment in the name of such administrator.

The fact that the claim of said Davidson had been assigned to her attorney prior to her death and before the entry of the judgment would not authorize the court in amending the record so that the proceedings could stand and continue in the name of the deceased, for the use of such attorney.

The judgment is reversed and the cause is remanded with directions to the court to proceed in said cause in conformity with the views herein expressed.

Reversed and remanded with directions.