Handy v. McClellan
| Decision Date | 08 May 1911 |
| Parties | R. S. HANDY, Appellant, v. MARY McCLELLAN et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from Texas Circuit Court.--Hon. L. B. Woodside, Judge.
REVERSED AND REMANDED (upon conditions).
E. H Farnsworth, and Lamar, Lamar & Lamar for appellant.
(1) An application for a continuance is addressed to the sound discretion of the trial court, but such discretion is judicial and is subject to review on appeal. Distilling Co. v. Van Frank, 80 Mo.App. 50; Alt v Groseclose, 61 Mo.App. 409; Barnum v. Adams, 31 Mo. 532; Nichols v. Grocer Co., 66 Mo.App. 320; State v. Maddox, 117 Mo. 667; Fuert v Caster, 174 Mo. 299. (2) The refusal of the court under the circumstances to grant a continuance to plaintiff was an unwise exercise of the court's discretion. The judgment rendered therein was a final judgment and the court's refusal to continue operated as a denial to the plaintiff of an opportunity of presenting his side of the case. Richardson v. Boyd, 69 Ark. 368, 68 S.W. 868; Watkins v. Ahrens, 38 S.W. 868; Mayton v. Guild (Texas), 28 S.W. 218.
Dooley, Hiett & Millard for respondents.
(1) The action of the trial court in overruling plaintiff's application for a continuance was not complained of as error in plaintiff's motion for a new trial, hence cannot be considered in the appellate court. McMurdock v. Kimberlin, 23 Mo.App. 523; Grisham v. Ins. Co., 130 Mo.App. 57; St. Louis v. Lawton, 189 Mo. 474; State v. Scott, 214 Mo. 261; Dorris v. Dorris, 129 S.W. 979. (2) While an application for a continuance is addressed to the sound discretion of the trial court and is subject to review upon appeal, yet such discretion will not be interfered with unless the discretion has manifestly been abused or unwisely exercised. Hurck v. St. Louis Co., 28 Mo.App. 629; Frick Co. v. Marshall, 86 Mo.App. 470; Easton v. Joyce, 85 Mo.App. 433; State v. Banks, 117 Mo. 123; State v. Horn, 209 Mo. 462; State v. Devorss, 221 Mo. 469; Leabo v. Godde, 67 Mo. 126; Valle v. Picton, 91 Mo. 207. (3) The ruling of the court below upon motions for a continuance is seldom interfered with by the appellate court as it is a matter resting in the discretion of the trial court and in every case the ruling of the trial court is entitled to every intendment in its favor. Fredrick v. Rice, 46 Mo. 24; Blair v. Railroad, 89 Mo. 395; King v. Pearce, 40 Mo. 223. (4) Plaintiff was not unavoidably absent from the Texas county circuit court at the March term, 1910, thereof, and even though he had been unavoidably absent, he would not have been entitled to a continuance unless it was made to appear that he was a material witness in his own behalf and that it was impossible to have taken his deposition. Owens v. Tinsley, 21 Mo. 423; Lumber Co. v. Schmidt, 130 Mo.App. 231. (5) Absence of counsel, although unavoidable, is not sufficient grounds for a continuance or a new trial where it is not shown that had counsel been present, he could have gone to trial or could have presented unquestionable ground for a continuance. Railroad v. Holliday, 131 Mo. 440; Griffin v. Veil, 56 Mo. 310; Jones v. Ins. Co., 55 Mo. 342. The failure of the appellant to prosecute his suit was due solely to his lack of diligence and his own inexcusable negligence and the court did not err in refusing to set aside the default judgment taken against him. (6) Courts will not relieve parties of defaults which are the consequence of their own negligence. Robyn v. Chronicle Pub. Co., 127 Mo. 385; Colter v. Luke, 129 Mo.App. 707; Sigaloff v. Brewing Co., 129 S.W. 526. (7) The setting aside a judgment by default is a matter for the discretion of the trial court and the appellate court will not revise its action in refusing to set aside a default judgment, unless its action shows an abuse of the discretion and that manifest injustice has resulted from its action. Hoffman v. Loudon, 96 Mo.App. 192; Pry v. Railroad, 73 Mo. 123. (8) If plaintiff's failure to prosecute his action is attributable to the negligence of his attorney, still plaintiff would be bound thereby for there is no distinction between the negligence of a party and that of his attorney. Field v. Watson, 8 Mo. 686; Biebinger v. Taylor, 64 Mo. 66; Gehrke v. Jod, 59 Mo. 522.
This is an action in replevin for certain personal property of the value of $ 350. Plaintiff gave bond and secured possession of the property. The cause was triable at the March, 1910, term of court, at which time, defendant filed an answer which was a general denial. Attorney for plaintiff, being, as he thought, unable to attend that term of court on account of pressing business in another court held at the same time, sent an application for continuance to an attorney at the Texas county court, and had the same filed. This application was overruled. Defendant then filed an amended answer asserting ownership of the property in them and asking for a return of the same, and an assessment of its value. The court heard the testimony of defendants, and rendered judgment in their favor. Plaintiff filed a motion for a new trial, alleging that it was impossible for either plaintiff or his counsel to be in attendance at the time of the trial, and that plaintiff's counsel had been misled by a conversation with counsel for defendants, and had by such conversation, been led to believe that the cause would be continued by consent; also alleged that plaintiff had a meritorious cause of action. This motion was overruled, and plaintiff has appealed.
The errors assigned are that the court erred in overruling the application for continuance, and in overruling the motion for a new trial.
The action of the court in overruling the application for a continuance is not alluded to in the motion for new trial; Hence, if any error was committed in that respect that question is not properly before us. [The City of Saint Louis v. Lawton, 189 Mo. 474, 88 S.W. 80; Grishma v. Insurance Co., 130 Mo.App. 57, 109 S.W. 96; Dorris v. Dorris, 149 Mo.App. 107, 129 S.W. 979.]
Neither plaintiff nor his counsel were present at the trial and the motion for new trial sets up the reasons therefor. The evidence in support of the motion (which was received without objection) shows the following state of facts. The circuit courts of Texas and Wright counties both convened on the same day for the March, 1910, term. Plaintiff's counsel and one very important witness for plaintiff were required to attend the Wright county circuit court in several cases. The plaintiff himself was required to attend Federal Court in Kansas at the same time. The courts of Texas and Wright counties convened on the first Monday in March, and in January or February prior thereto plaintiff's counsel, who lived at Mountain Grove in Wright county, had a conversation with counsel for defendant in which the inability of plaintiff and his counsel and one very important witness to attend the March term of the Texas county circuit court was fully gone over, and defendant's counsel was also notified that to prepare for the trial plaintiff would be required to take depositions in Nebraska, and he was requested to agree to a continuance of this case. He stated that personally he would be glad to do so and would communicate with his clients who lived in Nebraska, and would either continue the case or notify plaintiff's counsel in time for him to prepare for trial. There was a little variation in the testimony of the parties as to the details of this conversation, but there can be no question that plaintiff's counsel understood it as above outlined. After defendants' counsel heard from his clients he notified counsel for plaintiff that he would not consent to a continuance, but it was then too late for plaintiff to take depositions and prepare for trial. Should the court, upon this showing, have sustained the motion for new trial?
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