Dilley v. Scott, 3--174A14
Decision Date | 10 December 1975 |
Docket Number | No. 3--174A14,3--174A14 |
Citation | 167 Ind.App. 177,338 N.E.2d 296 |
Parties | Robert DILLEY, Appellant-Plaintiff, v. Vera L. SCOTT et al., Appellees-Defendants. |
Court | Indiana Appellate Court |
John S. Gonas, South Bend, for appellant.
Harold T. Miller, Morris Rosen, South Bend, for appellee Scott.
Don G. Blackmond, South Bend, for appellees Dyer and Tire Service Co.
The sole issue presented for review is whether the trial court erred when it denied Dilley's mid-trial motion for a continuance. We conclude that there was no error, and we affirm the judgment of the trial court.
Dilley's parked automobile was allegedly damaged as a result of the negligent, willful, and wanton conduct of Scott and Dyer. 1 Dilley's claim was originally tried in the justice of the peace court, and judgment was entered for the defendants. Dilley appealed to the St. Joseph Circuit Court. On July 9, 1973, trial was set for September 25, 1973.
At trial, Dilley was the only witness called. Dilley had no personal knowledge of the accident. The trial court sustained an objection by the defendant's counsel, and Dilley's counsel moved for a continuance to subpoena other witnesses:
The trial court denied Dilley's motion for a continuance and entered judgment for the defendants. 2
Trial Rule 53.4 of the Indiana Rules of Procedure governs the granting of a motion for a continuance:
Dilley's counsel presented no affidavit or other evidence showing good cause for a continuance to secure the attendance of witnesses. He did not show the materiality of the testimony expected to be obtained; he did not state the names or residences of the witnesses or state that such information was unknown; he did not state what the testimony of the witnesses would reveal. Dilley's counsel did not comply with TR 53.4. The denial of the motion for a continuance was within the sound discretion of the trial court.
We cannot say that the trial court abused its discretion in denying Dilley's motion for a continuance. The trial date was set more than two months before trial. 3 After his experience in the justice of the peace court, 4 Dilley's counsel knew the limited extent of Dilley's knowledge of the accident. He also knew the names of other witnesses to the accident--the other parties to the lawsuit and the investigating police officer. Yet, he went to trial without issuing a subpoena for the attendance of any witness. See Hambey v. Hill (1971), 148 Ind.App. 662, 269 N.E.2d 394 ( ).
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Halligan v. State
...reviewed for abuse of discretion. There must be a showing of prejudice before the trial court's decision is overturned. Dilley v. Scott (1975), Ind.App., 338 N.E.2d 296. We have been shown no such abuse or prejudice. The bifurcation of Halligan's trial was irregular. However, Halligan accep......
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