#### Harry Byrne v. J. D. O’Neill.

Judgments—Motion to Set Aside—Practice—Continuance—Absence of Party to Suit.

Upon motion to set aside a judgment, and for a new trial, said judgment having been rendered in the absence of petitioner, a party to the suit, it clearly appearing that such absence was due to a misunderstanding on his part, this court declines to interfere with the judgment against him.

[Opinion filed February 12, 1890 ]

*362Appeal from the Superior Court of Cook County; the Hon. Elbe Hawes, Judge, presiding.

Messrs. Jones & Lusk, for appellant.

Messrs. Gabtside & Leffinqwell, for appellee.

Per Curiam.

The trial of this case was entered upon before the judge, a jury being waived, and when partially heard the further hearing was, by agreement of the parties, postponed till notice should be given either side to resume the trial.

Appellant and his counsel consulted as to when it should be tried, and by appellant’s direction his counsel gave notice to take up the case on a particular day. When that day came appellee was in attendance with his counsel, and appellant’s counsel was present, but appellant was absent, and his counsel was unable to suggest to the court any ground or reason for his absence. Under such circumstances the court refused to further postpone the trial, and proceeded to hear the evidence and render a judgment thereon against appellant.

A motion was afterward made by appellant to set aside said ■ judgment, and for a new trial, which motion was overruled by the court, and it is from said ruling that this appeal is prosecuted. We have examined the affidavits filed in support of said motion, and they disclose that appellant’s absence was due to a misunderstanding between himself and his attorney, as to whether he should be notified that the trial would proceed on the day for which notice had been given. This misapprehension was the fault of appellant or his counsel; most probably wholly his own, and certainly not the fault of the other side. There was a clear lack of diligence due to inattention and negligence, for which alone appellant was responsible, and which is in no manner excused. Under such conditions it would require a case to be madé out on the merits, so clear that there could be little doubt of the inequality of the judgment, before a court would be called on to set aside the judgment. The affidavits showing appellant’s merits make out no such case. It is by no means clear from the *363facts stated in them, that appellant had a complete defense to appellee’s claim. We are of opinion on a careful examination of all the points presented, that the refusal of the court to sot aside the judgment against appellant was not an abuse of tne discretion which the judge was called upon to exercise, and unless the course of the trial court on such a matter amounts to an abuse of discretion, there is no basis for the interference of a reviewing court.

The judgment must be affirmed.

Judgment affirmed.