Evansville & I.R. Co. v. Hawkins

• Decision Date: 28 September 1887
• Citation: 13 N.E. 63,111 Ind. 549
• Court: Indiana Supreme Court
• Parties: Evansville & I. R. Co. and others v. Hawkins.

111 Ind. 549

13 N.E. 63

Evansville & I. R. Co. and others

v.Hawkins.

Supreme Court of Indiana.

September 28, 1887.

Appeal from circuit court, Daviess county.

A. & J. E. Iglehart and Edwin Taylor, for appellants. W. R. Gardiner and J. C. Suit, for appellee.

Elliott, J.

The issue between the parties to this cause was formed by the answer of general denial to the appellee's complaint which sought to recoverdamages for injuries received by the appellee while a passenger on one of the appellant's trains. A single question is presented, and that is, did the trial court err in refusing to grant the appellant a continuance. The issues were closed on the tenth day of June, 1885, and on that day the cause was continued on the appellant's motion. On the seventh day of October of that year a second application for continuance was made by the appellant, and it is on that application that error is alleged. In support of the application affidavits were filed stating, in substance, that Messrs. Iglehart and Taylor were “the regular attorneys of the appellant; that they had examined and prepared the defense of the cause, and alone had charge of said preparation, and that, without their assistance, the case cannot properly be tried on the part of the defendant; that John H. O'Neal, Esq., has been retained as local counsel only, and has had no charge of the preparation of the case or consultation with his associate counsel, and therefore is not prepared to conduct the defense; that Messrs. Iglehart and Taylor, have used all prudence and care with their docket in settling cases for trial in other counties with a view to be present at the trial of this cause on Tuesday, October 6, 1885, the day on which said cause was set for trial;” that they entered on the trial of a cause in Vanderburg county on Tuesday, October 1, 1885; that “it was expected by all parties that the trial” would be concluded before Saturday evening; that the trial is still in progress, and cannot be concluded until after October 7, 1885. It is further stated in the affidavits that “on Saturday, October 3d, Messrs. Iglehart and Taylor, finding the cause in Vanderburg county would not be concluded for a day or two, nor for some days to come, caused a telegraphic message to be sent to Joseph C. Suit, counsel for plaintiff, and copies of the message and answer are set out. It is contended by appellee's counsel that the refusal to continue will not be ground for reversal, unless it...