Ex parte Driver

• Decision Date: 18 December 1952
• Docket Number: 2 Div. 314
• Citation: 62 So.2d 241,258 Ala. 233
• Parties: Ex parte DRIVER.
• Court: Alabama Supreme Court

Page 241

62 So.2d 241

258 Ala. 233

Ex parte DRIVER.

2 Div. 314.

Supreme Court of Alabama.

Dec. 18, 1952.

Withers & Kerr, Greensboro, and McQueen & McQueen, Tuscaloosa, for petitioner.

G. E. Sledge and Walter P. Gewin, Greensboro, for respondent.

SIMPSON, Justice.

This is an original petition for mandamus filed in this court by the plaintiff in a cause pending in the Hale Circuit Court, styled J. E. Driver, Plaintiff, v. J. C. Beech et al., Defendants, praying that the writ be directed to the Honorable L. S. Moore, as Judge of said court, to command him to set aside an order entered in said cause on the 30th of September, 1952, and to grant plaintiff's motion for a judgment nil dicit or, in the alternative, for a rule nisi to be directed to said judge to show cause why the defendants should not be taxed with court costs to date.

Following are the facts on which petitioner claims the right to the issuance of this extraordinary writ: When the motion for the judgment nil dicit was made in the circuit court, the cause had been previously continued three times, twice by the defendants, and the defendants were then moving for another continuance. The suit was filed March 17, 1950. The case was first continued because of the pendency in this court of a proceeding in mandamus filed by the plaintiff to require the defendant to answer certain interrogatories. Ex parte Driver, 255 Ala. 118, 50 So.2d 413. The defendants seasonably interposed demurrers to the complaint, which were overruled, and thereafter filed a plea of the general issue in short by consent. On October 15, 1951, on the second call of the case for trial, it was continued on motion of the defendants by reason of the illness of the wife of one of the attorneys for the defendants; at the next call, April 8, 1952, it was again continued on motion of defendants due to the illness of one of the attorneys for the defendants; then finally on September 30, 1952, at the following term, the defendants again moved for a continuance because of the illness of the defendant J. C. Beech, who was shown to be the chief defendant in the case and the person alleged to have committed the tort complained of in the complaint, and that there was no one else except defendant Beech possessed of all the facts of which he was conversant. It is this last continuance of which the petitioner complains and on which he rests his contention that he was entitled to have his motion for a judgment nil dicit granted against the defendants, or in the alternative an assessment against them of the costs to date.

When the instant petition was presented to this court, the Justices ordering the issuance of the rule nisi were clearly of the opinion that the plaintiff made no showing that he was entitled to a judgment nil dicit, but did entertain that aspect of the petition with respect to the failure of the lower court to require the defendants to pay the costs and ordered the rule to issue to the respondent judge to show cause why he should not enter such an order.

A painstaking study of the record, together with the governing authorities, has convinced us that the petition cannot be sustained on either aspect of the case.

Clearly the plaintiff, petitioner here, was not entitled to a judgment nil dicit. The defendants were in court by their attorneys defending the action with their plea on file. They first moved for a continuance on the ground of the absence of Beech and had it been denied, they still would have been entitled to go to trial on their plea regardless of the absence of one defendant. Merely by moving for a continuance was no abandonment or waiver of their plea or any other defense, but to the contrary, obviously evidenced that they were strenuously defending the suit, their first effort being to obtain the continuance, which was granted by the court. These circumstances fail to establish any right in the plaintiff to a judgment nil dicit. Wooten v. Traders' Securities Co., 216 Ala. 147 149, 113 So. 492; Hutchison v. Powell, 92 Ala. 619, 622, 9 So. 170; Elyton Land Co. v. Morgan, 88 Ala. 434, 7 So. 249.

The case of Ex parte Central Alabama Dry Goods Co., 238 Ala. 20, 189 So. 56, is not an apposite authority to sustain the contention of petitioner. There the defendant had interposed no defense to the suit, but on the first day of the session of court when the plaintiff moved for a judgment, the court refused and at a later date on a showing of illness of defendant continued the cause. It was the opinion of this court that no showing was made to justify the continuance, since it was never made known that the defendant had or claimed a meritorious defense, no plea or demurrer having been filed; that without a showing of a meritorious defense and without filing a plea so indicating and without a showing that it was indispensable for defendant to be present on the trial to properly present his defense, if he had any, or that he was a competent or material witness to some issue, that his absence by reason of sickness did not authorize a continuance. The instant case presents just the contrary and showed all of the essentials which would deny the plaintiff the right to a judgment nil dicit.

We have become equally convinced, in the light of the cases governing, that this court should not revise the action of the respondent judge in granting the continuance without penalty. When the rule nisi was ordered, we thought it wise to look into the matter because of the recognized principle that every litigant is entitled to a speedy trial and the petition indicated the plaintiff had not been accorded that treatment and thus might be entitled to have the costs to date assessed against the defendants. On coming in of the answer, however, we have concluded that the writ should not be granted. The reason will appear manifest to the impartial mind.

The grant or refusal of a continuance rests within the discretion of the trial court. For a long time action in that regard was not even reviewable. Now, however, it appears that such action will be subject to revision where an obvious and palpable abuse of discretion is shown. Lutz v. Van Heynigen Brokerage Co., 202 Ala. 234, 80 So. 72; Knowles v. Blue, 209 Ala. 27, 30, 95 So. 431.

It is conceded that before mandamus will issue to the lower court the petitioner must have a clear legal right to have the act done which is sought to be coerced. Since continuances are within the sound discretion of the trial court, we have said that this discretion will not be controlled by mandamus except in extraordinary cases of gross abuse. Ex parte Taylor, 247 Ala. 308, 24...