No. 57.

#### Lechner v. Surrells.

Appellee recovered a judgment against appellants (husband and wife) before a justice of the peace; an appeal therefrom was taken to the county court, and on the first day of the June term, 1886, thereof, the appeal was dismissed, and a procedendo awarded on the 12th day of the same term. Appellants entered a motion to set aside the default, which motion, by order of the court, was overruled, and this appeal was taken to reverse said order. In support of the motion the affidavits of appellants were read to the court, and show, the husband, before the convening *675of the county court, sent a letter to the attorney for plamtiff, informing him that by reason of sickness said husband would not be able to attend court at said June term, and requesting the attorney to hand the letter to a firm of attorneys, who had appeared for appellants before the justice, so that said attorneys might have the cause continued until the husband was able to come. That appellants relied, on said firm of attorneys to continue the cause, but by neglect of plaintiff’s attorney, the letter was not shown them, that said husband was so sick during said first week of the June term as to be unable to attend court; the affidavits failed also to set forth sufficiently a meritorious defense. Held, that the court properly denied the motion to set aside the default.

Opinion by

Green, J.

Judge below, S. F. Giimobe. Attorneys, for appellants, Mr. B. F. Kagay ; for appellee, Mr. John C. White.