#### Wilcox vs. Holmes.

*Practice*— Gontimumce *of a/ppeal from justice's court, after failure to notice for t/wo terms*— Seo. 216, *ch.*120, *M. S.*

1. Under sec. 216, ch. 120, R. S., the circuit court, for sufficient cause shown, may continue an action on appeal from a justice of the peace, which has not been noticed for trial at the first or second term after the appeal was taken ; and may allow an answer to be filed where the judgment before the justice was taken upon default of an answer or appearance by defendant.

2. The affidavits in this case *held*to show a sufficient cause for leave to file an answer and continue the action.

APPEAL from the Circuit Court for *Bock*County.

Thie action was commenced in a justice’s court, and judgment was rendered against the defendant on his default; from *308wbicb an appeal was taken to the circuit court in June, 1864. The cause was not noticed by either party at either of the next two terms of said court. During the second of said terms, defendant obtained an order upon plaintiff to show cause why he should not be permitted to file an answer, and have the cause continued to the next term. This order was based upon affidavits of the defendant and Chas. Gr. Williams, Esq., his attorney, and a copy of the proposed answer. The latter was a general denial, and a counter-claim. The defendant’s affidavit, after the usual allegation of merits, stated in substance, that after the suit was commmenced he employed an attorney to attend to it, who forgot and neglected to do so; that after the appeal he spoke to Mr. Williams about attending to the suit, and considered him retained therein; that affiant supposed that if the *action*was not noticed for two terms, it would “ go down,” and he be released from the judgment, and that Mr. Williams would look after the matter; that upon applying to his said attorney, since the commencement of said term, to know the condition of the action, he was informed, and so learned for the first time, that it was necessary for him to notice said appeal within two terms, or it would be dismissed, and the judgment stand good; that said attorney also informed biin that he had supposed that affiant was plaintiff instead of defendant in the action ; that the matter had been conducted in perfect good faith on affiant’s part. Mr. Williams’ affidavit states that a short time before judgment was rendered in this action, an action was commenced several times by the plaintiff against the defendant, and one or more actions were commenced by defendant against the plaintiff; that he remembers defendant’s speaking to him about some of said actions that had been appealed, and presumes that at the time he understood the matter, but if he did, it passed wholly out of his mind, and when defendant applied to him after the commencement of the pending term of court, he was laboring under an impression that the suit was one in favor of the defendant, &c.

*309After bearing tbe parties upon tbe order to show cause, tbe court refused tbe defendant’s motion, on tbe ground that it bad no power to grant it. From this order tbe defendant appealed.

*Ghas. G.*Williams, for appellant,

cited sec. 216, cb. 120, R. S.

*H. A.*Patterson, *contra.*

Downer, J.

Tbe affidavit of tbe appellant contained tbe statements of an affidavit of merits, and also enough, taken in connection with tbe affidavit of Williams, to excuse bis neglect in not noticing tbe action for trial tbe first and second terms after tbe appeal. He ought, therefore, to have been permitted to file bis answer, and then tbe cause should have been continued on terms.

*By the Court.*— The judgment of tbe circuit court is reversed, and tbe cause remanded for further proceedings.