Robertson

This was an action for malicious prosecution. The trial took place in the absence of the defendant and his counsel, and resulted in a verdict for fifteen hundred dollars, for which judgment was entered. The defendant moved for a new trial .on the ground of *269 accident, surprise, etc., which motion was denied. The appeal is from the judgment, and the order denying a new trial. But the sole point made is that the trial court ought to have granted a new trial on the ground of surprise, and to this we agree.

There were no opposing affidavits. It therefore stands virtually admitted that the absence of the defendant and his attorney was caused by their reliance upon the promise of the plaintiff’s attorney to notify the defendant’s attorney before taking up the case, and the failure to comply with such promise. It is true that this promise was verbal, and therefore that it could not be enforced as such. But it seems to us that reliance upon the word of a reputable attorney is excusable neglect, for which relief may be given so far as to set aside the advantage taken in violation of the promise. If the promise had been denied, then we think that in view of the practical difficulty of…