Jennings Co. v. Dyer

• Decision Date: 28 February 1914
• Docket Number: Case Number: 2718
• Citation: 139 P. 250,1914 OK 89,41 Okla. 468
• Parties: JENNINGS CO. v. DYER et al.
• Court: Oklahoma Supreme Court

1914 OK 89

139 P. 250

41 Okla. 468

JENNINGS CO. v. DYER et al.

Case Number: 2718

Supreme Court of Oklahoma

Decided: February 28, 1914

Syllabus

¶0 1. APPEAL AND ERROR--Presentation for Review--Errors at Trial--Denial of New Trial. Where plaintiff in error fails to assign as error in his petition in error the overruling of a motion for a new trial, no question which seeks to have reviewed errors alleged to have occurred during the progress of the trial in the court below is properly presented to this court, and such alleged errors cannot therefore be reviewed.

2. CONTINUANCE--Grounds. Continuances of causes are not favored by the courts, and, when granted, the grounds must be such that the trial court may clearly see that a postponement of the case will result in the furtherance of justice. Such applications are addressed to the sound discretion of the court, and will not be reversed unless an abuse of discretion plainly appears.

3. CONTINUANCE--Grounds--Sickness of President of Corporation. An application for a continuance in behalf of a corporation litigant, which stated that its president was confined to his home in another county on account of illness, and was unable to travel, accompanied by attending physician's certificate to that effect, and where it further appears in said application that such president had the general management of the corporate business, and that the facts pertaining to the action were peculiarly within his knowledge, and that plaintiff could not safely go to trial without his presence, and unless the cause was continued the rights of plaintiff would be greatly injured and endangered, does not, for the reasons set forth in the opinion, state a valid ground for continuance as provided in section 5836, Comp. Laws 1909 (section 5045, Rev. Laws 1910).

Error from District Court, Carter County; S. H. Russell, Judge.

Action by the Jennings Company against Mamie Dyer, Frank Dyer, Salina Dyer, Eliza Dyer, L. D. Akers, Jimmie Speake, and Dow Taylor, administrator of the estate of A. W. Speake, deceased. From a judgment in favor of defendant Mamie Dyer, plaintiff brings error. Affirmed.

Moore & Bass, for plaintiff in error

Johnson & McGill and Thos. Norman, for defendants in error

SHARP, C.

¶1 The errors assigned by plaintiff in error in its petition in error are as follows: (1) That the court erred in overruling plaintiff's motion for a continuance; (2) that the judgment is contrary both to the law and the evidence; (3) that the court erred in rendering judgment against plaintiff and in favor of defendant Mamie Dyer.

¶2 Motion for a new trial was filed and overruled, to which plaintiff excepted. The action of the court, however, in overruling the motion for a new trial has not been assigned as error in plaintiff in error's petition in error in this court, and, as all the errors assigned are those occurring during the trial, none of the matters urged in its brief, unless it be the action of the court in overruling the plaintiff's motion for a continuance, can be considered; the rule in such cases being that where the errors assigned are those occurring during the trial, and appellant fails to assign as error the overruling of its motion for a new trial, in its petition in error, no question which seeks to review such errors is properly presented for review to this court. Cox v. Lavine, 29 Okla. 312, 116 P. 920; Meyer v. James, 29 Okla. 7, 115 P. 1016; George v. Moore, 32 Okla. 842, 124 P. 36; Hunter v. Hines et al., 33 Okla. 590, 127 P. 386; Butler v. Oklahoma State Bank, 36 Okla. 611, 129 P. 750; St. Louis, I. M. & S. Ry. Co. Dyer, 36 Okla. 112, 128 P. 265.

¶3 Assuming, without deciding, that the action of the trial court in overruling plaintiff's application for continuance may be properly considered, in view of the state of the record, as shown, we are of the opinion that no error in that respect was committed. Plaintiff in error is a corporation, and it appears from the affidavit for continuance, made by its attorney, that B. E. Jennings, president of said company, was, on account of illness, confined to his home in Oklahoma City, and unable to travel or to attend to business, as shown by the physician's certificate. The affidavit further states that the said B. E. Jennings, as president of the plaintiff corporation, "has the general management of the business of plaintiff, and the facts pertaining to this suit are peculiarly within his knowledge; that plaintiff could not safely go to trial without his presence, and, unless said cause is continued, the rights and interests of this plaintiff will be greatly injured and endangered." The case of McMahan v. Norick, 12 Okla. 125, 69 P. 1047, is relied upon by plaintiff as authority requiring a reversal of the judgment of the trial court, on account of the denial of a continuance to plaintiff. In that case the application for a continuance was supported not only by an affidavit of the attending physician, but the affidavit set forth the facts to which the defendant would testify if present, and further showed that said facts could not be proven by any other witness, and that, if the case was continued until the next term of the court, the attendance of the defendant could be procured. The present...