Bernard's Fur Shop v. De Witt, 1442.
| Decision Date | 29 January 1954 |
| Docket Number | No. 1442.,1442. |
| Citation | 102 A.2d 462 |
| Parties | BERNARD'S FUR SHOP, Inc. v. DE WITT. |
| Court | D.C. Court of Appeals |
Milton E. Canter and Louis Urow, Washington, D.C. for appellant.
Before CAYTON, Chief Judge, and HOOD and QUINN, Associate Judges.
Appellant corporation was sued for possession of certain business property. Through its president it filed an answer raising two defenses, one being that notice to quit on August 1 had not been served until July 2, and thereby appellant was not given the required thirty days' notice. Trial by jury was demanded and trial was set for October 6. On that date counsel for appellant requested a continuance on the ground that appellant's president, who expected to testify on its behalf, was ill and could not be present. He presented to the court a doctor's certificate that the witness was under his care and was temporarily totally disabled. Counsel for appellee objected to the continuance and stated he would stipulate that if the absent witness were present "she would testify to such matters which counsel for the defendants would state that she would testify to." On the strength of this offered stipulation (which was not accepted) the court denied a continuance. The case went to trial, no evidence was offered by appellant, and a verdict was directed for appellee.1
The sole question before us is whether there was error in denying the continuance. We think there was error. The court was advised that appellant's chief officer who was to be its chief witness was unable to be present because of illness. This statement was supported by a doctor's certificate. Nothing in the record questions the truthfulness of the statement or certificate. Although continuances on the date set for trial are to be discouraged, nevertheless when a party or an important witness is unable to be present because of illness, the party ought not to be deprived of the opportunity of presenting his case.2 A continuance should have been granted until the witness was able to come to court or until her deposition could be taken. The offer of opposing counsel to stipulate as to the witness's testimony was not sufficient justification for the denial of the continuance. One issue in the case was the date of service of the notice to quit. Appellee's evidence was that the notice was served on the absent witness on June 29. Appellant's answer, verified by that witness, stated the notice was served on July 2. A mere stipulation as to the witness's testimony would hardly have had the same weight before a jury as the testimony of the witness herself.
Argument is made that the motion for a continuance did not strictly conform to the rule of court. No objection to the form of motion was made when it was under consideration and under the circumstances of the case we think any technical...
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Daniels v. US
...fill the void created by the loss of the photograph itself for viewing by the jury" (emphasis in original)); Bernard's Fur Shop, Inc. v. De Witt, 102 A.2d 462, 464 (D.C.1954) ("A mere stipulation as to the witness's testimony would hardly have had the same weight before a jury as the testim......
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...an effective defense to the Bank's claims against him. See Feaster v. Feaster, 359 A.2d 272, 273 (D.C.1976); Bernard's Fur Shop, Inc. v. DeWitt, 102 A.2d 462, 464 (D.C.1954); Keister v. McDavid, 76 A.2d 776, 778 (D.C.1950). Indeed, the trial court specifically allowed the witnesses' testimo......
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Feaster v. Feaster, 10256.
...to avoid "material hardship and injustice". Etty v. Middleton, D.C.Mun.App., 62 A.2d 371, 373 (1948); see Bernard's Fur Shop v. DeWitt, D.C.Mun.App., 102 A.2d 462 (1954). See also Cornwell v. Cornwell, 73 App.D.C. 233, 118 F.2d 396 (1941). We think it is beyond doubt that undue hardship was......
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Lyons v. Jordan
...cited by appellants, Harris, supra; Warren v. United States Fidelity & Guaranty Co., 171 A.2d 747 (D.C. 1961); Bernard's Fur Shop, Inc. v. DeWitt, 102 A.2d 462 (D.C. 1954); Cornwell v. Cornwell, 73 U.S.App.D.C. 233, 118 F.2d 396 (1941) are distinguishable. In each of those cases the trial c......