Kuber v. Gamache

The proof shows that, when the default of the plaintiff herein was taken, the plaintiff’s counsel was actually engaged in the trial of an action in the Supreme Court. It is also quite clear that an affidavit of such actual engagement was presented to the trial justice when the case was called for trial, and a request made that the case be held for another day. Under this state of facts, no costs or disbursements should have been imposed as a condition for opening the default.

Order appealed from modified, by striking therefrom the imposition of the costs and disbursements of the trial, and, as modified, affirmed, with $10 costs and disbursements upon this appeal to the appellant.