Carr v. Carr
| Decision Date | 19 December 1957 |
| Docket Number | No. 29804,29804 |
| Citation | 308 S.W.2d 357 |
| Parties | William L. CARR (Plaintiff), Respondent, v. Frances E. CARR (Defendant), Appellant. |
| Court | Missouri Court of Appeals |
Fletcher P. Gotter, Overland, Robert Frazier, Greensboro, N. C., for appellant.
Samuel S. Mandel and Milton W. Schaeffer, Louis E. Zuckerman, St. Louis, for respondent.
Defendant has appealed from the judgment granting plaintiff a divorce and dismissing defendant's cross-bill. The sole point for determination is whether the trial court abused its discretion in refusing to grant defendant a continuance upon her oral application therefor. This contention requires a review of the proceedings giving rise to this question.
The petition for divorce was filed on July 5, 1956; defendant's answer and cross-bill on August 15, 1956, and plaintiff's reply on September 28, 1956. When the cause was called for trial on December 6, 1956, Mr. Gotter, representing defendant announced: A colloquy ensued between the court and the lawyers relating to the procedure to be followed in the absence of defendant. This resulted in an announcement by the court that he would hear plaintiff and his witnesses on that day, and then pass the cause to a day certain to afford defendant the opportunity of presenting evidence or of making a proper showing that because of illness she could not then appear. Later and on the same day, Mr. Gotter informed the court that he had heard from Dr. G. Alexander over 'long distance telephone' but no attempt was made to disclose the nature of the conversation. Thereupon, with Mr. Gotter present and after the court heard plaintiff's testimony and that of his character witnesses, the cause was passed to December 20, 1956. On that day the parties appeared by their respective lawyers, and Mr. Gotter stated that he had received a letter from the L. Richardson Memorial Hospital, Inc., Greensboro, North Carolina, which the court received as evidence. Therein it was stated that Mrs. Frances Carr became acutely ill on December 5, 1956; that an operation was performed on December 6, 1956, and that No further effort was made to obtain a continuance, and the Court, after stating 'I don't think these letters comply with our statutes, therefore, I am going to overrule a further continuance * * *,' entered the decree from which the defendant has appealed.
By the explicit terms of Section 510.090 RSMo 1949, V.A.M.S., 'Every application for a continuance shall, unless the adverse party consents that it be made orally in open court, be made by motion in writing, accompanied by the affidavit of the applicant, or some other credible person, setting forth the facts on which the application is founded.'
There is neither proof nor contention that a written application was presented at any time in this case, nor does it appear that plaintiff consented to the oral request made at the outset of the trial proceedings. In this state of the record we cannot say that the trial court acted arbitrarily in refusing the request that was made. Key v. Key, Mo.App., 93...
To continue reading
Request your trial
-
Blessing v. Blessing
...the absent one, party or witness, would prove, if present, could not in any case be sufficient. . . .' 224 S.W. at 82; Carr v. Carr, 308 S.W.2d 357 (Mo.App.1957), implies that the affidavit applies to a party.6 §§ 452.300--452.415, RSMo Supp.1973.7 Section 303 of the Uniform Marriage and Di......
-
Grunewald v. Missouri Pacific Railroad Company
...v. Blair, 280 S.W.2d 675, 678 (Mo.App.1955); Blair v. Chicago & A. Ry. Co., 89 Mo. 383, 395, 1 S.W. 350, 354 (1886); Carr v. Carr, 308 S.W.2d 357, 359 (Mo.App.1957); Harms v. Simkin, supra, p. 933 of 322 S.W.2d. See State v. Mimms, 349 S.W. 2d 925, 927 All this means, of course, that each c......
-
Searles v. Searles, 25999
...there was no abuse of discretion in denying a continuance. Kinsella v. Kinsella, 353 Mo. 661, 183 S.W.2d 905 (1944); Carr v. Carr, 308 S.W.2d 357 (Mo.App.1957); McGinley v. McGinley, 170 S.W.2d 938 Even if nothing else had preceded, the giving of six days notice for trial is not in itself a......
-
Clinton v. Clinton, 33179
...error for denial of the request. For the granting of a continuance rests largely in the discretion of the trial court, Carr v. Carr, Mo.App., 308 S.W.2d 357; the fact that defendant's counsel may have been engaged elsewhere did not, in and of itself, compel a continuance, Savings Finance Co......