King v. McWhorter
| Decision Date | 28 October 1935 |
| Docket Number | 31870 |
| Citation | 174 Miss. 187,163 So. 679 |
| Court | Mississippi Supreme Court |
| Parties | KING v. MCWHORTER |
1. APPEAL AND ERROR.
Correspondence between attorneys and trial judge with reference to continuance which was refused had no place in record, since only pleadings, orders, instructions, judgment, and evidence and rulings thereon constitute record on appeal.
2 CONTINUANCE.
Where motion for continuance was supported only by certificates of physicians that party to suit was unable to attend court because of illness and affidavit of attorney stating necessity of party's presence to advise her attorneys but failing to state facts upon which alleged necessity was based and failing to set out what party's testimony would be as witness in her own behalf, continuance held properly denied (Code 1930, section 576).
3 CONTINUANCE.
Absence of party is no cause for continuance when case is reached for trial, unless his presence is necessary for proper presentation of case, and this must be shown, not by way of conclusion, but by evidence justifying such conclusion (Code 1930, section 576).
4 CONTINUANCE.
To justify continuance upon ground of absence of party because of illness, application must set forth with reasonable clearness material facts party would testify to if present (Code 1930, section 576).
HON THOS. E. PEGRAM, Judge.
APPEAL from the circuit court of Chickasaw county HON. THOS. E. PEGRAM, Judge.
Action by T. S. McWhorter against Mrs. C. R. King. From a judgment for the plaintiff, the defendant appeals. Judgment affirmed.
Affirmed.
Leftwich & Tubb, of Aberdeen, for appellant.
The trial court erred in overruling appellant's motion for a continuance.
The learned trial court did abuse its discretion in overruling the motion for a continuance, and as a result thereof appellant was denied a substantial right. The action of the court was harmful to this appellant. We might say at this point that the motion for a continuance and the affidavits in support thereof are in the form provided by the statute and the statutory procedure has been pursued.
The facts, as set up in the affidavits which support the motion for a continuance, are not controverted.
We find the books full of cases where continuances were had because of the sickness of witnesses or the sickness of parties.
Caldwell v. State, 85 Miss. 383, 37 So. 816; Scott v. State, 80 Miss. 199, 31 So. 710; Watson v. State, 81 Miss. 700, 33 So. 491.
We also call the court's attention to the following cases presenting similar facts, and in which this court has held the continuance should have been granted.
Watts v. State, 90 Miss. 757, 44 So. 36; Vollm v. State, 96 Miss. 651, 51 So. 275; Corgin v. State, 99 Miss. 486, 55 So. 43; Haggett v. State, 99 Miss. 844, 56 So. 172; Johnson v. State, 108 Miss. 709, 67 So. 177; Walker v. State, 129 Miss. 449, 92 So. 480.
The court will observe that the continuance was asked on two grounds, viz.: the illness of the appellant and the inability of her counsel to be present at the trial.
The appellant was entitled to a trial by jury and she was under no duty or obligation to consent to or agree to a vacation hearing before the judge in order to get a continuance of the same.
Stovall & Stovall, of Okolona, for appellee.
The only issue before the court is whether or not the trial judge in exercising the discretion placed in him by statute abused that discretion when he overruled appellant's motion for a continuance. It is the appellee's position that the learned trial judge reached the only conclusion that the law and the facts of the case justified, and that there was no abuse of discretion that would authorize a reversal of the case.
We submit that the mere assertion in appellant's affidavit for a continuance made by one of her counsel that "she is a material witness in her own behalf" does not satisfy the demands of the statute that the affidavit shall set forth the facts which are expected to be proved by the absent witness. Even assuming for the purpose of the argument that the ex parte affidavits of the doctors are sufficient to account for the absence of the party making the affidavit for a continuance and thereby permitting the court to consider same as provided by the statute, the affidavit itself for a continuance did not comply in substance with the requirement of the statute to authorize the court to grant same. The appellee, however, did not rest on the insufficiency of appellant's showing for a continuance, but put on affirmative proof as to the condition of health of appellant between the time of the last continuance, April, 1934, and the then October, 1934, term of court to rebut the allegation that appellant's condition of health was such that her deposition could not have been taken.
The cases of Scott v. State, 80 Miss. 199, 31 So. 710, and Watson v. State, 81 Miss. 700, 33 So. 491, cited in appellant's brief on the question of judicial discretion in passing upon a motion for a continuance, are not in conflict with the decision of the learned trial judge, but, on the other hand, we submit, buttress the strength of the justice of that decision.
Absence of a party to a case is no cause for a continuance when called for trial unless his presence is shown to be necessary for the proper presentation of...
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...to attend court for about four days was attached. The situation is so nearly exactly that which confronted the Court in King v. McWhorter, 174 Miss. 187, 163 So. 679, 680, that we merely quote from the opinion in that case. 'The affidavit, although it stated that appellant's presence was ne......
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Eastland v. State, 39383
...annotation thereof some cases which deal with the absence or illness of a party. One of the cases is the civil case of King v. McWhorter, 174 Miss. 187, 163 So. 679, which holds that the absence of a party is no cause for a continuance when the case is reached for trial, unless his presence......