Farmers' State Bank of Ellis v. Crawford

• Decision Date: 03 November 1934
• Docket Number: 31552.
• Citation: 37 P.2d 14,140 Kan. 295
• Parties: FARMERS' STATE BANK OF ELLIS v. CRAWFORD et al. [*]
• Court: Kansas Supreme Court

37 P.2d 14

140 Kan. 295

FARMERS' STATE BANK OF ELLIS v. CRAWFORD et al. ^[*]

No. 31552.

Supreme Court of Kansas

November 3, 1934

Syllabus by the Court.

Motion for continuance for absence of defendants' counsel is addressed to trial court's discretion.

Absence of defendants' attorney at trial does not necessarily require granting of continuance, when associate counsel competent to represent defendant is in attendance.

Denial of motion for continuance sought on ground of absence of one of defendants' two attorneys will not be reversed, where no prejudicial consequence to defendants appears.

Errors predicated on instructed verdict and overruling defendants' motion for new trial are not open to review on appeal, where defendants have not provided complete transcript of evidence and abstract fairly summarizing it and court's rulings thereon.

1. A motion for a continuance on account of the absence of one of two attorneys for the defendants at the trial was addressed to the discretion of the court; and an adverse ruling thereon does not constitute reversible error where no prejudicial consequence to the defendants appears.

2. In an appeal from a judgment in an action in ejectment where the trial court directed a verdict for plaintiff and where defendants have not provided a complete transcript of the evidence and an abstract fairly summarizing it and the court's rulings thereon, errors predicated on the instructed verdict and overruling defendants' motion for a new trial are not open to appellate review.

Appeal from District Court, Trego County; Herman Long, Judge.

Action by the Farmers' State Bank of Ellis against Mary A Crawford, Charles W. Crawford, and others. Mary A. Crawford filed a disclaimer. From an adverse judgment, Charles W Crawford and others appeal.

George W. Holland, of Russell, and John R. Parsons, of Wakeeney, for appellants.

W. H Wagner, of Wakeeney, and W. L. Sayers, of Hill City, for appellee.

DAWSON Justice.

This action was begun to cancel a deed which the defendant Mary A Crawford had executed to her three sons and which purported to convey to them certain lands in Trego county to which plaintiff claimed title under a sheriff's deed issued to it pursuant to the sale of those lands in foreclosure.

By consent of the litigants the action was resolved into one in ejectment. Mary A. Crawford disclaimed, and at the conclusion of the evidence, on motion of plaintiff, the jury was directed to render a verdict in favor of plaintiff.

The defendants other than Mary A. Crawford appeal, assigning certain errors, the first of which pertains to the overruling of their motion for a continuance on the ground that one of their attorneys had business in the probate court of a neighboring county when this case was called for trial.

It has long been settled law that the granting or refusing of a continuance is a matter committed largely to the discretion of the trial court. Davis v. Wilson, 11 Kan. 74, syl. 3. Unless abuse of such discretion is made to appear, no reversible error can be predicated on the trial court's ruling on this matter. Certainly the absence of an attorney does not necessarily require that a continuance be granted when associate counsel competent to represent the party seeking the continuance is in attendance. State v. Sweet, 101 Kan. 746, 752, 168 P. 1112; Berry v. Dewey, 102 Kan. 593, 172 P. 27. In this case it does not appear that the absence of one of defendants' attorneys prejudiced them in the slightest degree.

The second and third assignments of error relate to the instructed verdict and the overruling of the motion for a new trial. But counsel for the appellee raise the point that these assignments are not open to review because no transcript of the record was prepared as the Code provides and in consequence the abstract is incomplete. This point seems to be insurmountable. Counsel for appellants say that...