Skirm v. Hilliker

The opinion of the court was delivered by

Collins, J.

The trial of this cause was had in the absence of the defendants and their attorneys and counsel. Affidavits are now presented tending to explain such absence and to show that the trial was a surprise; but they were irregularly taken and we have not considered them. There must be a new trial, however, by reason of an erroneous assessment of damages.

In the plaintiffs' declaration it was averred that on July 29th, 1899, by an agreement, in writing, of that date, a copy of which was annexed to and made a part of the declaration, 'the…