Corey v. Blackwell Lumber Co.
| Decision Date | 05 June 1915 |
| Parties | W. A. COREY, Trustee in Bankruptcy of R. J. JOHANNES, Appellant, v. BLACKWELL LUMBER COMPANY, a Corporation, and Mrs. R. J. JOHANNES, Respondents |
| Court | Idaho Supreme Court |
APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. Robert N. Dunn, Judge.
Action to recover the amount of an alleged fraudulent preference made by a bankrupt. Motion for a continuance denied, and judgment of dismissal entered. Affirmed.
Judgment affirmed, with costs in favor of the respondents.
E. R Whitla and Samuel R. Stern, for Appellant.
We are not willing to concede that the court exercised a sound discretion. On the contrary, we insist that he abused the discretion vested in him. (Hamilton v. Hamilton, 21 Idaho 672, 123 P. 630.)
This court has not heretofore hesitated to reverse the trial court upon a matter of its discretion with respect to a continuance. (Storer v. Heitfeld, 17 Idaho 113, 105 P. 55.)
"It is error on the part of the court to allow the dismissal of a case for want of prosecution where the delay has been caused or acquiesced in by defendant or where defendant has been equally negligent in the prosecution of a counterclaim interposed by him." (14 Cyc. 446.)
John P Gray and Frank M. McCarthy, for Respondents.
A motion for continuance is addressed to the sound legal discretion of the court, and unless there is a clear abuse of that discretion the order will not be disturbed on appeal. (Richards v. Richards, 24 Idaho 87, 132 P. 576; De Puy v. Peebles, 24 Idaho 550, 135 P. 264; Holt v. Gridley, 7 Idaho 416, 63 P. 188; Reynolds v. Corbus, 7 Idaho 481, 63 P. 884; Richardson v. Ruddy, 10 Idaho 151, 77 P. 972; Storer v. Heitfeld, 17 Idaho 113, 105 P. 55; Rankin v. Caldwell, 15 Idaho 625, 99 P. 108; Miller v. Brown, 18 Idaho 200, 109 P. 139; Walsh v. Winston Bros. Co., 18 Idaho 768, 772, 111 P. 1090.)
(Richardson v. Dinkgrave, 26 La. Ann. 651; Schlesinger v. Nunan, 26 Ill.App. 525.)
"The absence of counsel upon the calling of the case for trial is little favored by the courts as a ground for continuance." (Lightner v. Menzel, 35 Cal. 452; Hammond v. Haws, 11 F. Cas., p. 390, No. 6,002; Baumberger v. Arff, 96 Cal. 261, 31 P. 53; Keegan v. Donnelly, 11 Colo. App. 31, 52 P. 292; Reynolds v. Campling, 23 Colo. 105, 46 P. 639; Cox v. Allen, 91 Iowa 462, 59 N.W. 335.)
"Due diligence is a question upon which the decision of the trial court is always presumably correct." (Vol. 4, Ency. Pl & Pr. 856; Blair v. Chicago etc. R. Co., 89 Mo. 383, 1 S.W. 350; State v. Whitton, 68 Mo. 91; Boone v. Mitchell, 33 Iowa 45.)
This action was brought by the plaintiff as trustee in bankruptcy of one R. J. Johannes against the Blackwell Lumber Company, a corporation, and Mrs. R. J. Johannes, to recover the amount of an alleged fraudulent preference attempted to be made by Johannes, the bankrupt, to his divorced wife, one of the defendants.
The lumber company was made a party defendant because it had in its possession money originally due to said R. J. Johannes, while the latter was engaged in the coal business in Spokane, Washington, and because a garnishment or attachment had been issued against it in an action brought by the Davenport Coal Company against the bankrupt to recover money due it from him.
The complaint was filed March 26, 1912, to which a demurrer was interposed and the demurrer was not disposed of until January, 1913, when it was sustained. The plaintiff elected to stand on his complaint and refused to plead further, and judgment of dismissal was entered and from that judgment an appeal was taken to this court (see Corey v. Blackwell Lumber Co., 24 Idaho 642, 135 P. 742), and the judgment was reversed and the cause remanded for further proceedings.
On March 5, 1914, the cause came on for trial and the application was made to postpone the trial because the plaintiff had not yet taken the deposition of R. J. Johannes, which he desired to introduce on the trial of the case, and also because of the engagements of Mr. Stern, one of the attorneys for the plaintiff, who took the more active part in the management of this case and who was intending to try it with the assistance of Mr. Whitla. The court denied a continuance and thereupon dismissed the action for want of prosecution.
A motion was made to vacate and set aside the judgment of dismissal, and the appeal is from the judgment and the order denying the motion to vacate the judgment.
The errors assigned involve the action of the court in refusing to grant a continuance and in dismissing the case for want of prosecution.
The motion to vacate the judgment was presented on certain...
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...17 Idaho 113, 105 P. 55; Miller v. Brown, 18 Idaho 200, 109 P. 139; De Puy v. Peebles, 24 Idaho 550, 135 P. 264; Corey v. Blackwell Lumber Co., 27 Idaho 460, 149 P. 510; Berlin Machine Works v. Dehlbom Lumber Co., 32 Idaho 566, 186 P. 153; Aumock v. Kilborn, 53 Idaho 506, 25 P.2d 1047; Paci......
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