Keegan v. Donnelly

• Decision Date: 14 February 1898
• Citation: 11 Colo.App. 31,52 P. 292
• Parties: KEEGAN v. DONNELLY et al.
• Court: Colorado Court of Appeals

52 P. 292

11 Colo.App. 31

KEEGAN v. DONNELLY et al.

Court of Appeals of Colorado

February 14, 1898

Appeal from district court, Arapahoe county.

Attachment by John C. Keegan against Daniel Donnelly and others. Defendants obtained judgment. Plaintiff appeals. Affirmed.

Joseph F. Maxwell and John C. Keegan, for appellant.

Henry C. Charpiot, Stuart & Murray, and H.L. Ritter, for appellees.

WILSON J.

Plaintiff Keegan, is an attorney at law, and was employed as such about the contest of the will and the settlement of the estate of Owen Donnelly, deceased, to which the defendants were heirs. He brought this suit to recover an amount claimed to be due him for professional services rendered by him at their request and in their behalf in and about the contest and the business of the estate. The action was by attachment, and a writ of garnishment was served upon the administrator. Defendants answered, admitting the employment of plaintiff and the performance of professional services by him, but alleging the presentation and allowance in the county court of a bill therefor, and the full payment thereof. They also filed a cross complaint alleging that the present claim of plaintiff had been presented for allowance in the county court, and disallowed; that thereupon he had appealed to the district court, by which, with plaintiff's consent, the said judgment was affirmed, and that the present suit was maliciously instituted and prosecuted for the sole purpose of harassing and annoying defendants; wherefore they prayed judgment for $250 damages, and that plaintiff be enjoined from further prosecuting any suit, action, or proceeding growing out of any professional or other services rendered by plaintiff at the instance of defendants. Plaintiff replied, denying the allegations of the cross complaint, and averring that the services which were the basis of the present suit were not the same as those for which his bill had been presented and disallowed by the county court. Upon the day when the cause was reached for trial, plaintiff applied for a continuance, which was denied. Thereupon trial commenced, and was had to the court, a jury being waived by the defendants and by the plaintiff, who personally appeared in his own behalf. Plaintiff declined to offer any testimony in support of his complaint, stating that he would not further prosecute his suit in that court, but would appeal to the court of appeals. Defendants proceeded to prove their case, and at its conclusion judgment was rendered in their favor for the sum of one dollar on account of damages, and for the costs of suit, and for the injunctive order as prayed for.

The assignments of error urged to this court are predicated upon the refusal of the trial court to grant a continuance, and upon the claim that the evidence was insufficient to support the judgment. It has become the settled rule in this jurisdiction, confirmed by repeated decisions of the highest appellate tribunals that the action of trial courts upon applications for continuances is discretionary with them; and, while such action is subject to review on appeal, it is reviewable only in case of manifest abuse of discretion. Dawson v. Coston, 18 Colo. 493, 33 P. 189; Michael v. Mills, 22 Colo. 440, 45 P 429; Reynolds v. Campling, 23 Colo. 108, 46 P. 639; Outcalt v. Johnston, 9 Colo.App. 519, 49 P. 1058. Tested by this rule, we find nothing in the record which would justify a reversal by this court on that ground of error. The material portion of plaintiff's affidavit in support of his motion for a continuance, after alleging the absence from the state of...