Kirkland v. C. D. Franke & Co.

This is a proceeding by appellant (petitioner in the court below) under section 5372 of the Code of 1907, seeking to have the judgment recovered against him in the court below set aside, upon the ground that he had been prevented from making his defense by surprise, accident, mistake, or fraud, without fault on his part. Petitioner relied upon a verbal statement, alleged to-have been made by counsel for plaintiff to M. C. Kirkland, his codefendant, to the effect that the cause would not be called for trial until the February term. The alleged agreement, not being in writing, and relating to…