#### John T. Byrnes, Administrator, Appellee, v. Solomon Zemoan, Appellant.

Gen. No. 20,510.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. William N. Gem mill, Judge, presiding.

Heard in the Branch Appellate Court at the October term, 1914.

Reversed and remanded.

Opinion filed June 17, 1915.

Statement of the Case.

Action by John T. Byrnes, as administrator of the estate of Daniel Byrnes, deceased, against Solomon Zemoan for attorney’s fees alleged to have been *342earned by the plaintiff’s intestate. The defendant filed an affidavit of merits, stating that the services had been paid for during the lifetime of the deceased, and also that the deceased was indebted to the defendant for money loaned. On May 5, 1914, the case was called for trial in the absence of the defendant and a judgment rendered against him for the amount claimed. The next day the defendant moved to vacate the judgment and, in support of his motion, filed several affidavits, showing that defendant had a meritorious defense to the plaintiff’s claim; and also stating, in substance, that before the opening of court on the day the judgment was rendered, the defendant and a man from the office of the defendant’s attorney went to the court room and told the clerk of the court that defendant’s attorney was actually engaged in the trial of a case in another court of record and would be so engaged all that day. The affidavits also showed that defendant’s attorney was in fact so engaged all that day. The defendant asked the clerk whether it would be necessary for him to remain, to which the clerk replied in the negative, saying that the case would be passed if reached for trial on that day. The motion to vacate was denied and the defendant brings error.

Abstract of the Decision.

Judgment, § 2&& * —w7ien vacated because of absence of defendant and Ms counsel. Where, before the opening of court on the day set for the trial of a case in the Municipal Court of the city of *343Chicago, the defendant informed the clerk that his attorney was actually engaged in the trial of a cause in a court of record and was told by the clerk that he need not remain as his case would be passed when called, but instead a judgment was rendered for the plaintiff in the absence of the defendant or his counsel, held that the judgment should have been vacated on the defendant’s showing of the facts and filing an affidavit of merits.

*342Daniel S. Wentworth, C. A. Coolidge and David B. Maloney, for appellant.

John T. Byrnes, for appellee.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Presiding Justice Pitch

delivered the opinion of the court.