Baldwin v. Kramer

Appeal from the Eleventh Judicial District.

Plaintiffs brought suit 24th December, 1851, against defendants for the possession of a tract of land, and for damages.

Kramer filed his answer January 2d, 1852, denying the charges in the complaint. On the 18th May, 1852, the cause was called for trial, the defendants not appearing, a jury was empanelled; the plaintiffs introduced their evidence; the case was submitted, and a verdict of restitution and 500 dollars damages was rendered, and judgment entered upon the verdict. On the 20th May, 1852, an execution issued, and the next day, the property of defendants was levied upon by the sheriff. After the property was advertised, defendants, on the 3rd August, 1852, paid the execution. On the 8th July, 1852, the defendants moved to set aside the judgment and for a new trial, which the Court overruled. On the 14th September, 1852, defendants repeated their motion, and the Court ordered the payment to be set aside, and granted a new trial; from which order plaintiffs appealed.

The affidavit of Kramer, defendant, to support his motion, stated that the cause had been tried in his absence and the absence of his attorney, and without their knowledge, and without evidence on their part; that during the rime of the trial he was sick and unable to attend Court, or to procure testimony ; that one of the plaintiffs falsely told him the cause had been dismissed, and misled him to believe that his attendance was unnecessary, and therefore did not prepare his defence, which he is informed he could successfully make.

Another witness swore that Pollard (plaintiff) had told him, that he had told Kramer that the trial was not coming on, and requested affirmant not to tell Kramer the fact that it would come on. Another swore that Pollard had requested him to tell Kramer, that the suit would be discontinued; which he did tell him accordingly: and of this character were all the affidavits.