CHARLESTON.

#### G. D. Hill *v.*D. A. Long *et als.*

(No. 6480)

Submitted October 1, 1929.

Decided October 8, 1929.

*665
      *James 8. Redmond,*for plaintiff in error.

HatoheR, Judge:

On January 7, 1928, tbe plaintiff secured a judgment for $200.00 before a justice of tbe peace. Tbe defendants noted •an appeal and gave bond. Attempts at compromise were made but not consummated. Tbe plaintiff finally bad tbe case put on tbe docket of tbe circuit court ten days before tbe August term. On August 20tb, no appearance being made by tbe defendants, default judgment for tbe plaintiff was entered. On October 1st defendants appeared and moved tbe court to set aside tbe judgment. A special judge continued tbe motion until the next term for tbe consideration of tbe regular judge, the order reciting that it appeared that defendants bad a just defense. How this was shown is not clear. On December 18th, tbe court, after bearing evidence, set aside tbe judgment and granted defendants a new trial. This is an appeal from that ruling.

Tbe evidence offered in support of tbe motion to vacate tbe judgment showed that defendant D. A. Long knew that tlie ease was to be tried at tbe August term, but did not know on what day; that Long’s attorney, *A.t*J. Lubliner, did not know that tbe case bad been certified to tbe circuit court by tbe justice; that it was tbe custom of tbe court to have a printed docket of all cases sent to lawyers interested in any case thereon, about two weeks before tbe term; that this case was not on that docket; that all cases which were docketed thereafter were put on the court docket, as was done in this instance; that tbe court was accustomed to call all cases on tbe first day of tbe term; that Mr. Lubliner was in court on that day and tbe court announced that be was anxious to get away and would not call tbe docket as usual, but that tbe special judge would call each case as it was set; that this case was not called until tbe second day of tbe term at which time Mr. Lubliner was not present; and that be bad no *666knowledge that tbe ease was docketed until after judgment bad been entered.

This state of facts shows that defendants’ failure to appear was due merely to lack of diligence. One of the defendants knew that the ease was to be tried at the August term, yet did not ascertain the day set for trial. His attorney knew that, while the case was not on the printed' docket sent him, cases coming in after the docket was printed were put on the court docket. He had warning that the docket would not be called'as usual; yet he did not examine the court docket to see if it contained any of his cases not on the printed docket. Section 47, Chapter 125, Code, forbids that a default judgment be set aside unless “good cause be shown therefor’’. Good cause under the statute has been held to be “fraud, accident, mistake, surprise or some other adventitious circumstance beyond the control of the party and free from neglect on his part.” *Post*v. *Carr,*42 W. Va. 72. *Gainer*v. *Smith,*101 W. Va. 314. Even if failure of appearance here could be attributed to any circumstances within the definition of good cause, that circumstance was not *free from neglect on the part of defendants.*Consequently the judgment should not have been set aside.

The order of December 18, 1928, is set aside and the judgment of August 20, 1928, reinstated.

*Order set aside; judgment reinstated.*