Eossett v. Gardner

• Decision Date: 31 January 1869
• Citation: Eossett v. Gardner, 3 W.Va. 531 (W. Va. 1869)
• Parties: John D. D. Eossett v. Gardner and Eichardson.
• Court: West Virginia Supreme Court

3 W.Va. 531

John D. D. Eossett

v.Gardner and Eichardson.

Supreme Court of Appeals of West Virginia.

January Term, 1869.

It is held that a party is entitled to a continuance where he has used due diligence to be prepared for a trial, and one of his counsel is absent by reason of a change in the time of holding the circuit courts in an adjoining circuit, having been previously engaged in the last mentioned court and in attendance at the same; and where his other counsel, although present during the term, was absent when the cause was heard.

This cause arose in Jackson county. The question determined by this court was whether the appellant, Eossett, was entitled to a continuance in the court below at the term when a tinal decree was had against him, September,

The following affidavits were filed at the September term, on a motion to submit the cause to the court:

"Before me, John H. Eiley, deputy of E E. Eiley, personally appeared the complainant, John D. D. Eossett, and made oath that at the commencement of the term of this court last Monday, in open court before the bar, he has asked to his counsel, Benjamin II. Smith, Esq., present, what arrangement he had made, for he had been engaged by the complainant as his legal defensor in some of the cases of the said complainant being then before the court, and handed them by him to Mr. Tomlinson, from Mason county, attorney-in-iaw then at the bar to attend to him, then the said attorney, Benjamin II. Smith, then and there, in presence of Mr. Eobert Brown, attorney practising at the bar aforesaid, called the said Mr. Tomlinson to remember their understanding, that no case of said Eossett should be passed save the case of Wolf, to the best of his knowledge and belief. The deponent further states that he sincerely believes he cannot proceed, and justice be done to him, without the defence of his learned counsel, who is thoroughly acquainted with the case and the bearings on it of law and equity, the case being of magnitude and of great importance and burden for him, and that the deponent has made all possible exertion to have the case ready, and his other counsel, Benjamin Wilson, Esq., present, but unavoidably absent, as reference to be had in his affidavit, filed this term of the court, in the case of deponent against John M. Greer, et al."

"U. W. Flesher, one of the attorneys for the defendants, makes oath that since he has been employed in this cause he has submitted on the 1st day of each term of the circuit court of this count}', for four or five times, the file of papers in the above chancery cause.

" That the complainant or his counsel, at each time of submission, would call for and take the papers, saying they would examine them and hand to the court in time for decision, or else would file an affidavit on account of their defects in taking evidence, and have the cause continued; that when they did take them that they kept the file until after the court adjourned, or uutil it was too late in the term for the court to examine them; that at the last term of this court John D. D. Rossett, the complainant, by an affidavit stating that defendants had excepted to his evidence; that he could notgo, safely into trial without said evidence being retaken; that it was then in process of being taken, &c. and asked that cause be continued until the next term.

"Affiant further makes oath that the said complainant has now taken said evidence three or four times, and each time he has substantially committed the same error, and the depositions now filed, in the opinion of the affiant, since the last term of this court, is subject to the same exceptions. Affiant therefore believes that they are taken faulty purposely to delay and prevent a final hearing of this cause."

The matter referred to by affiant, Rossett, in the affidavit in the cause against Greer el al., was that a change had been made by the legislature in the time of holding courts in the circuit adjoining Jackson county, and that his counsel, Benjamin Wilson, Esq., was in attendance upon a term then holden in that circuit and could not be present at the Jackson court.

A. F. Raymond for the appellant. G. H. Lee for the appellees.

Brown, President. This case, though very imperfectly presented, yet shows satisfactorily that appellant had used due...