Byers v. McPhee

Decision Date01 October 1878
Citation4 Colo. 204
PartiesBYERS v. McPHEE et al.
CourtColorado Supreme Court

Appeal from District Court of Arapahoe County.

THE facts are stated in the opinion.

Messrs FRANCE & ROGERS, for appellant.

Messrs PATTERSON & CAMPBELL, for appellees.

STONE J.

When this cause was called for trial in the court below, on the 20th of June, 1877, application was made on behalf of the appellant for a continuance, or at least, a postponement of the case until certain cases then on trial in the county court, in which both attorneys for appellant were then engaged for the defendants, should be disposed of. The affidavit in support of the motion shows that the case had been set down on the calendar of the district court, for hearing on the 12th of June, 1877; that owing to delay or protracted length of the trial of preceding cases, this cause could not be reached on the 12th, and was not reached until the 20th; that after the case had been set down for the 12th the attorneys for appellant consented to enter upon the trial on the 18th, of five several cases in the county court, in each of which the defendant a corporation, was the same; that neither the county court nor the plaintiffs in said suits would consent to delay the trials; that the nature of the cases were such as to require the attendance of both the attorneys for the appellant; that the nature of this case also was such as would necessitate the attendance of both said attorneys in its trial; that other attorneys could not then be engaged to competently try any of the cases, and the court was therefore asked to delay the trial thereof until the said cases in the county court were disposed of, which affiant believed could be done by the 23d inst. The court thereupon delayed the trial of the case until the next day, the 21st, at which time the first of the said cases in the county court in which said attorneys were then engaged, was concluded, when this cause was called for trial, the attorneys being engaged in the trial of the other cases in the county court, and not appearing in the district court, it was heard ex parte, and upon the testimony of the appellees, a verdict of $1,815.93 was given by the jury, and judgment rendered thereon.

On the 23d, the attorneys of appellant, having concluded the trial of their cases in the county court, moved to set aside the verdict, supporting the motion by affidavits setting up substantially the same facts as in support of the previous motion for continuance, and in addition thereto, the affidavit of appellant showing a meritorious defense to the action. Exceptions to the overruling of this motion, and to the denial of the continuance asked, are made the ground for reversal of the judgment in this court.

Two questions arise for consideration: 1st, was there sufficient ground for the continuance asked; and 2d, may the appellate court interfere with a ruling made in the discretion of the court below?

The second question being dependent upon the first, the two may fairly be considered together, since the application for the continuance not resting upon statutory grounds, was necessarily addressed to the discretion of the court purely.

We have examined the cases cited by counsel for appellant, as well as a number of others of like character, in support of the motion for continuance, but are unable to find a single case where such application was made when there was more than one attorney engaged in the case and competent to attend to it. Most of the cases in which the continuance has been allowed or where a denial has been reversed, is where a single or leading counsel in the case was so ill as to be unable to attend to any business whatever, and other counsel could not be engaged to competently try the case. The case of Hill v. Clark, 51 Ga. 122, is the only case we have found similar to this, in that there was a conjunction of time of trial of cases in different courts. This had been brought about by an adjourned term of the supreme court. ...

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7 cases
  • Abshier v. People, 12558.
    • United States
    • Colorado Supreme Court
    • June 9, 1930
    ...v. People, 78 Colo. 43, 45, 239 P. 14; Stone v. People, 71 Colo. 162, 204 P. 897; Epley v. People, 51 Colo. 501, 503, 119 P. 153; Byers v. McPhee, 4 Colo. 204. 3. is stated in the Epley Case, supra, that the gravity of the offense charged may be an element of determination in granting or re......
  • Daugherty v. People
    • United States
    • Colorado Supreme Court
    • July 6, 1925
    ... ... by reason of the denial of the continuance. In addition to ... the authority cited above, we refer to the following: Byers ... v. McPhee, 4 Colo. 204, 206; Roberts v. People, 9 Colo. 458, ... 465, 13 P. 630; Epley v. People, 51 Colo. 501, 503, 119 P ... 153; Reynolds ... ...
  • Epley v. People
    • United States
    • Colorado Supreme Court
    • November 6, 1911
    ...to be considered, and, unless there is an abuse of such discretion, its rulings will not furnish grounds for reversal. Byers v. McPhee et al., 4 Colo. 204; Roberts People, 9 Colo. 458, 13 P. 630; Jarvis v. Shacklock, 60 Ill. 378; Graff v. Brown, 85 Ill. 89; Baumberger v. Arff, 96 Cal. 261, ......
  • Hartford Fire Ins. Co. v. Hammond
    • United States
    • Colorado Supreme Court
    • November 4, 1907
    ... ... should be exercised according to the circumstances of each ... case.' Other authorities to the same effect are Byers v ... McPhee, 4 Colo. 204; Roberts v. People, 9 Colo. 458, 13 P ... 630. We cannot see that the defendants were prejudiced by the ... action of ... ...
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