Guardian Assurance Company of London v. Domingo Quintana

• Decision Date: 27 January 1913
• Docket Number: No. 280,280
• Citation: 33 S.Ct. 236,227 U.S. 100,57 L.Ed. 437
• Parties: GUARDIAN ASSURANCE COMPANY OF LONDON, Limited, Plff. in Err., v. DOMINGO QUINTANA
• Court: U.S. Supreme Court

227 U.S. 100

33 S.Ct. 236

57 L.Ed. 437

GUARDIAN ASSURANCE COMPANY OF LONDON, Limited, Plff. in Err.,

v DOMINGO QUINTANA.

No. 280.

Argued January 6 and 7, 1913.

Decided January 27, 1913.

Messrs. Frederic D. McKenney, J. Spalding Flannery, and William Hitz for plaintiff in error.

Messrs. Clement L. Bouve and Hector H. Scoville for defendant in error.

Mr. Chief Justice White delivered the opinion of the court:

In 1911 defendant in error moved under rule 9 to docket and dismiss the writ of error for failure to file the record. Plaintiff in error opposed because a bill of exceptions was yet unsettled in the hands of the court below, and the motion was, on April 3, 1911, denied 'without prejudice to a renewal of same if case is not docketed within a reasonable time after the bill of exceptions is settled.' Shortly thereafter, on May 3, 1911, there was filed as a transcript a paper containing the pleadings and certain journal entries and other documents purporting to relate to proceedings had in the cause in the court below, and to certain steps stated to have been taken concerning a bill of exceptions, there being, however, no such bill in the record. Putting out of view the statements made exhibiting the facts and circumstances which gave rise to the reserving of an exception, and the preparation of a bill of exceptions, and the effort to settle the same, and looking only at the pleadings and journal entries properly embraced in the record, the following is shown:

The suit, on November 29, 1910, was tried, resulting in a failure of the jury to agree. On December 2, 1910, the case was set for retrial at 10 A. M. on the following day. When the case was called for trial, defendant asked a postponement 'on account of the short time at his disposal to prepart the defense in the case.' On this request being denied an exception was taken and the counsel for the defendant withdrew. After the introduction of evidence for the plaintiff, the jury, as instructed by the court, returned a verdict for the plaintiff, upon which judgment was entered. It is to this judgment that the writ of error is directed, it having been allowed by the trial judge shortly after the trial, a supersedeas bond having been also approved about the same time. The assignment of errors was based solely on error asserted to have been committed in refusing the request to continue the case. It appears also from the record that a bill of exceptions was tendered to the court for approval, which bill presumably contained a statement of facts connected with the refusal of the continuance which were relied upon to sustain the assignment of error made on that subject.

The matter is again before us on a motion to dismiss because there is nothing within our jurisdiction to review, as there is not bill of exceptions, or to affirm, because of the wholly frivolous and unsubstantial character of the ground of error relied upon; that is, the failure of the court below to grant a continuance.

It is obvious that these propositions, inherently considered, rest upon an identical foundation (Deming v. Carlisle Packing Co. decided December 2, 1912 [226 U. S. 102, 57 L. ed. ——, 33 Sup. Ct. Rep. 83]), and we come to dispose of them in that aspect, considering first the more far-reaching of the two; that is, the asserted frivolous character of the error relied upon. We must, of course, approach the subject upon the assumption that it is urged upon the hypothesis that the record is in such a state as to justify us in disposing of the matter. This assumption must be indulged, because if it is not, there would be no way of testing the merits of the contention, and it would consequently resolve itself into a mere change in the form of stating the proposition that because there was no bill of exceptions, there was nothing for consideration. Coming to test the question of the frivolity of the error relied upon in the light of the assumption just stated, we deem it necessary merely to outline the facts which it is insisted would have been disclosed had a bill of exceptions been settled, as follows: After the failure of the jury to agree, in relance upon what was asserted to be a practice which had prevailed from the organization of the court, where there had been a disagreement of the jury, to carry a case over for trial before another venire at the following term, the witnesses for the defendant were discharged and allowed to depart for their homes; and on the assigning of the case for a retrial, the request for continuance was based on the physical impossibility of bringing the witnesses back in time to be heard, and to enable that purpose to be accomplished a continuance of five days was prayed and refused. Under this assumed state of facts we content ourselves with saying that there is no room for holding that the assertion of error based upon the refusal to continue was so devoid of foundation as to be merely frivolous in character. We say this because, while the elementary rule is that the granting or refusing of a continuance is within the discretion of a trial court,—a discre- tion which will not be lightly interfered with,—it is equally elementary that where it is manifest that there has been a plain abuse of discretion the duty to correct arises.

This brings us to the motion to dismiss; and its determination depends on the facts concerning the alleged bill of exceptions, and whether there has been such laches on that subject as to require a dismissal.

The mistrial, the assignment for a retrial, the application for a continuance, and its refusal and the reserving of an exception, the verdict and judgment and the allowance of the writ of error and the tendering of a bill of exceptions on the subject for settlement, as shown by the record, have already been stated in detail and we need not repeat those statements. Certain is it that the bill remained unsettled in the hands of the court when the previous order of this court, declining to dismiss for want of filing of the record, was entered. Indeed, it is shown by the record that on the 4th of April, 1911, the day after the previous application to...