Herron v. Jury

• Decision Date: 01 August 1867
• Citation: 1 Idaho 164
• Parties: David Herron, Respondent, v. Daniel M. Jury, Appellant.
• Court: Idaho Supreme Court

1 Idaho 164

David Herron, Respondent, v. Daniel M. Jury, Appellant.

Supreme Court of Idaho

August 1, 1867

CONTINUANCE-DISCRETION.-An application for a continuance is one addressed to the sound and impartial discretion of the court, which should be supported by all the facts and circumstances appertaining to the case.

APPEAL from the Third Judicial District, Ada County.

Scaniker & Burmester, for the Appellant.

Although the granting or refusing to continue a cause is said to rest in the discretion of the court, that discretion must be exercised in accordance with established rules, and the settled course of the court, for a court has no discretionary power in opposition to the settled principles of law and equity. (Hilliard on New Trials, secs. 9, 10, p. 9.) Besides there is a distinction between judicial and arbitrary discretion, and judicial discretion ought, and is, always exercised in such a manner as will best answer the ends of justice. (Hilliard on New Trials, secs. 12, 13, p. 10; People v. Superior Ct. of City of N. Y., 5 Wend 114; People v. Superior Court of City of N. Y., 10 Wend. 292; People v. New York Common Pleas, 18 Wend 534.) W. A. George, for the Respondent.

The court committed no error in overruling the motion. It was a matter within the discretion of the court, and the ruling will not be disturbed by this court unless it manifestly Musgrove v. Perkins,

9 Cal. 211; Pilot Rock Creek Canal Co. v. Chapman, 11 Cal. 161; Griffin v. Polhemus et al., 20 Cal. 180.)

McBRIDE C. J.,

delivered the opinion of the court,

CUMMINS J., concurring.

This cause was tried in the district court, and judgment rendered for the plaintiff. Before going into the trial, the defendant filed his motion for a continuance on the ground of the absence of material testimony, supporting the motion by his affidavit setting forth the grounds, and it having been overruled the plaintiff took exceptions thereto. After the trial the plaintiff moved for a new trial, and upon this motion used the same affidavit as in the former one, alleging error in the first ruling; and it having been overruled plaintiff took his exception and brings the case into this court, and assigns as error:

1. That the court below erred in refusing to grant the continuance asked for.

2. That the court below erred in denying the motion for a new trial.

The case is one of considerable importance in practice, and we desire to settle the point upon its merits. An application for a continuance is one addressed to the discretion of the court before which it is made. By this it is not meant an arbitrary discretion, controlled by caprice or whim, but a sound and impartial discretion, which should be supported by all the facts and circumstances appertaining to the case. It belongs to that class of applications which cannot in the nature of things, be defined with such accuracy and certainty as is attainable in other cases; and hence, while there is some approximation to rules in matters of discretion, it is only an approximation,...