Morrison

This is an action to quiet title. The appeal is from an order granting defendants’ motion for a new trial after judgment in favor of plaintiff.

The cause was set for trial for the sixteenth day of December, 1904. On the fifteenth day of that month defendants moved the court for a postponement of the trial on the grounds of the illness of one attorney and the inability of another attorney, but recently retained on account of the sickness of the former, to prepare defendants’ case for trial from lack of time to do so. From the affidavits filed to support the motion, it appears that the original counsel in the cause had been suffering for weeks from a nervous collapse; that on December 5, 1904, he notified defendants of his illness and the improbability of his recovery in time to prepare for trial, and suggested the retaining of other counsel. In pursuance to this notice the attorney appearing to present the motion was retained December 12, 1904. His affidavit discloses the character of the preparation necessary to a proper presentation of the defense and his court engagements, all tending to show that it would be impossible for him to make such a preparation before the day set for…