#### Stoppelfeldt vs. The Milwaukee, Manitowoc and Green Bay Railroad Company.

*New trial. Excusable neglect.*

One member of a law firm, wlio bad bad tbe sole management of a cause on defendant’s part, after being informed, in New York city (where be bad been necessarily detained by business), that tbe cause was to be tried during the last week of the term, started promptly for the place of trial, but was prevented from reaching it in season, by a disarrangement of tbe trains; and bis partner (who was not familiar with the facts and evidence), after objecting to a bearing of tbe case, on tbe ground that tbe term was legally at an end, took no part in the trial; and a verdict was found against the defendant. *Meld,*that this was a case of “ excusable neglect,” witbin tbe meaning of the statute; and an order refusing a new trial is reversed.

APPEAL from the Circuit Court for *Milwaukee*County.

This was an appeal from the appraisal by commissioners, of damages for certain lands of the present respondent, taken for *689the defendant company’s road. Notice of the appeal was served on Mr. Cotzhausen, as attorney for the company, but the records of the court show that it appeared and defended by Mann & Cotzhausen, as its attorneys. The appeal was noticed for trial at the January term of the court, 1871, and was called up on the 24th day of, February. Mr. Cotzhausen was then absent in New York, but Mr. Mann, his law partner, being present, objected to the trial on the ground that the term had legally ceased on the 16th day of January, by reason of the non-appearance of the judge on that day, pursuant to a previous adjournment; which being overruled, he withdrew and declined to take any part in the trial. In his absence the trial proceeded, and a jury of ten jurors being impanneled and accepted by the appellant, assessed his damages at more than twice the sum allowed by the commissioners. Mr. Mann then came in, and moved for a new trial on the minutes, which being denied, he procured a stay of proceedings until the next term.

At the May term of the court, the defendants, upon an order to show cause, renewed their application for a new trial. The affidavits in support of the motion showed that the railroad company had a good defense on the merits; that Mr. Cotzhausen was the attorney for the company, and had the exclusive management and control of the case, and was the only person and officer of the corporation fully informed as to the precise questions involved in the case; that, during,the January term of the court he had been unexpectedly called to New York on business of great importance, and unavoidably detained there longer than he expected and that, on being informed by his law partner that the court was about to adjourn “ *sine die”*and the appellants’ attorney would not consent to further postpone the hearing, he had immediately taken the cars for Milwaukee, but was unable to reach there in time for the trial, by reason of delays on the way through failure of trains to connect.

Judgments were taken in five other appeals at the same time, *690and under tbe same circumstances, and tbe same motions were made therein.

Tbe court denied tbe application, and tbe defendants appeal from tbe order. Bj stipulation, tbe other cases, abide tbe decision of this appeal.

*F. W Cotzhausen,*for appellants,

contended that tbe affidavits read in support of the application, being entirely uncon-tradicted, established a case of excusable neglect, and the court committed a gross abuse of discretion in denying tbe relief asked for, citing *People v. Freer,*1 Caines R., 394; *Thompson v. Payne,*8 id., 88 ; *Olney v. Bacon,*id., 132 ; *Wilson v. Guthrie,*id., 134; *Qardinier v. Crocker,*id., 139 ; *Bennet v. Fuller,*4 Johns., 486 ; *Wilmarth v. Gatfield,*1 How. Pr., *50; Leighton v. Wood,*17 Abb. Pr., 177; *Johnson v. Fldred,*13 Wis., 482; *Butler v. Mitchell,*15 id., 355; 17 id., 52; *Town of Omro v. Ward,*19 Wis., 232. 2. Tbe verdicts ought to be set aside on account of tbe great disparity between them and tbe awards of tbe corn-missioners; and also because tbe court bad no power or authority to submit tbe cases to tbe decision of only ten jurors, a jury not having been waived. *Norval v. Pice,*2 Wis., 22*May v. M & M. P. P. Co.,*3 id., 219.

*Johnson & Rdtbroclc,*for respondents,

contended that this was not a case of excusable neglect, but one of a deliberate refusal to try tbe case; that Judge Mann was one of the attorneys of record, and capable of trying it, if be bad chosen to; and be should have either done so, or moved for a continuance; that tbe irregularity, if any, in tbe matter of tbe jury is not brought Up by this appeal, and it does not exist as to tbe other five cases ; and that tbe verdicts are not excessive, but are quite as likely to be raised as to be reduced upon new trials.

Cole, J.

We are inclined to bold that tbe default of tbe company to appear and defend was excused, and that tbe court should have granted tbe application for a new trial. Tbe case should be regarded as though Mr. Cotzhausen were tbe sole at-*691tomey of tbe company. It is true tbat Messrs. Mann & Cotz-bausen were attorneys of record, and tbat Judge Mann was present when tbe case was called for trial, and, after objecting tbat tbe court could not try tbe case because tbe term bad legally closed, declined to take any further part in tbe trial. It appears tbat tbe cause bad been under tbe exclusive management and control of Mr. Cotzbausen, tbe attorney of tbe company, and tbat Judge Mann was not familiar witb tbe facts. Tbe case involved an assessment of damages for taking tbe plaintiff’s land for tbe use of tbe company, and, doubtless, Judge Mann might have examined tbe witnesses produced, and argued any question of law which might arise, without any previous knowledge of tbe case. But be might not have known what witnesses were to be called upon tbe part of tbe company, and, therefore, might not have been able to present its case fully to tbe court or jury. Mr. Cotzbausen was prevented, by unavoidable delays on tbe trains from New York to Milwaukee, from being present When informed in New York tbat tbe cause would be taken up tbe latter part of tbe week, be immediately started borne, expecting to reach Milwaukee in time for tbe trial, but tbe trains failed to connect. It seems to us tbat this shows a case of excusable neglect, within tbe spirit and meaning of section 38, chap. 125, R. S. Of course tbe court can, on granting a new trial, impose such terms as to costs as may seem just in view of tbe trouble and expense tbe plaintiff bad incurred. But we think, under tbe circumstances, a new trial should have been granted. *Johnson v. Eldred,*13 Wis., 482; *Butler v.*Mitchell, 15 id., 355.

*By the Court.*— Tbe order refusing a new trial is reversed, and tbe cause is remanded to tbe county court for further proceedings according to law.