Courtney v. Central Trust Co.

• Decision Date: 09 October 1933
• Citation: 112 Fla. 298,150 So. 276
• Parties: COURTNEY v. CENTRAL TRUST CO.
• Court: Florida Supreme Court

150 So. 276

112 Fla. 298

COURTNEY v. CENTRAL TRUST CO.

Florida Supreme Court, Division B.

October 9, 1933

Error to Circuit Court, Manatee County; W. T. Harrison, Judge.

Proceeding by the Central Trust Company, as executor of the estate of J P. Clark, deceased, against J. C. Courtney. To review a judgment in favor of plaintiff, defendant brings error.

Reversed for a new trial.

ELLIS J., dissenting.

COUNSEL

J. Ben Fuqua, of Palmetto, and D. R. Peacock, of Bradenton, for plaintiff in error.

Hardee & Martin and J. S. Clark, all of St. Petersburg, for defendant in error.

OPINION

PER CURIAM.

In this case a majority of the court are of the opinion that the demands of justice require the judgment to be reversed for a new trial.

The record shows that on March 20, 1931, Mr. J. Ben Fuqua represented to the court, by his motion in writing, that he had been and then was attorney for the defendant, J. C Courtney; that his wife had been seriously ill for several weeks; that on said day the doctors attending his wife had arranged a conference to decide whether Mrs. Fuqua was on that day strong enough to go through a serious surgical operation, and that by reason of his wife's illness it had been impossible for Mr. Fuqua to prepare his client's case for trial, nor was he, as an attorney, because of his worry over his wife's condition, in any fit mental condition to enable him to properly conduct his client's case if it were then tried.

It was further represented in the motion that because of Mrs Fuqua's condition, Mr. Fuqua was subject to being called home at any time, which placed him in an attitude of suspense that made him, as an attorney, feel that he could not give his client the representation that his client should have in the trial of his case. Continuance on the grounds stated was moved and denied. Exception was duly noted.

On the same day the case was tried with another attorney representing Mr. Courtney, and judgment was entered against defendant for $11,549.63, on a verdict returned by the trial jury.

While much must be left to the discretion of a trial judge in a matter like this, and this court is always most reluctant and hesitant in reversing judgments rendered after continuances have been applied for and denied, yet we have not hesitated to consistently declare that, when a trial judge perceives that in consequence of inadvertence of counsel, or other cause, the rigid enforcement of rules of procedure would defeat the great object for which they were established, it is his duty to so relax them (when it can be done without injustice to any) as to make them subserve their true purpose, which is to promote the true administration of justice. See Barber v. State, 5 Fla. 199, text 204.

Under present conditions surrounding the practice of the law, it is a common practice in this era of specialization, of which this court must take judicial notice, for particular cases to be specially prepared for trial in all their phases by one particular attorney engaged in the case, although others may also be engaged. Such seemed to be the situation with Mr Fuqua. The parties likewise often rely largely...