Kroll v. Smith, 18861

• Decision Date: 22 January 1957
• Docket Number: No. 18861,18861
• Citation: 139 N.E.2d 573,127 Ind.App. 178
• Parties: Mark KROLL, Appellant, v. Richard SMITH, Harold Jones, Jesse Gammon, d/b/a Smith, Gammon and Jones, a Partnership, Appellees.
• Court: Indiana Appellate Court

Page 573

139 N.E.2d 573

127 Ind.App. 178

Mark KROLL, Appellant, v. Richard SMITH, Harold Jones, Jesse Gammon, d/b/a Smith Gammon and Jones, a Partnership, Appellees.

No. 18861.

Appellate Court of Indiana, in Banc.

Jan. 22, 1957.

Harold V. Whitelock, Indianapolis, Dan Flanagan, Ft. Wayne, John B. Freiden, Cincinnati, Ohio, for appellant.

Arthur L. Payne, Lewis & Goett, Indianapolis, for appellee.

CRUMPACKER, Judge.

The appellees, partners engaged in the practice of law, claim to have performed professional services of the value of $2,500 for and on behalf of the appellant for which he refuses to pay. This action was brought to collect the same and resulted in a judgment for the appellees in the sum of $2,500. The appellant charges error in the judgment and proceedings of the trial court in a number of particulars which we will consider in the order of their presentation.

I. This action was brought in the Marion Superior Court and on November 1, 1955, said court set the same for trial on December 20, 1955. On the morning of that day H. V. Whitelock, counsel of record for the appellant, appeared in court and filed a motion for the postponement of trial supported by the following affidavit:

'H. V. Whitlock, being duly sworn, says that he is attorney of record for defendant in the above captioned cause; that this cause is set for trial this 20th day of December, 1955; that he cannot try this action on said date without prejudice to the defendant; that defendant Mark Kroll, is this day a witness in litigation proceeding in the United States District Court in Indianapolis, Indiana; that many of the facts and circumstances surrounding this cause are, due to its nature, peculiarly within the knowledge of the parties; that the presence and testimony of the defendant is material, vital and essential to his defense in this action; that affiant's co-counsel, attorney John B. Frieden, is actively engaged in litigation in the United States District Court, above referred to, and for that reason also cannot be present at this time; that attorney Freiden has carried the burden of preparation for this cause, has intimate knowledge of matters connected with this action, and expected to try this cause; that immediate trial in his absence will also prejudice defendant's proper defense; that both defendant and co-counsel will be available within a reasonable time; that the facts stated herein, as to the necessary absence of defendant and co-counsel, were unexpected and not known to this affiant until 4:50 P.M. on December 19th, 1955, when he learned that the above referred to litigation, which began on that date, would continue through this date. And further affiant sayeth not.'

The above motion for a continuance was overruled and the appellant predicates error thereon. It appears from the record that immediately after the filing of the motion there was some discussion between the court and counsel as to what could be done to meet the situation described in the affidavit which discussion ended with the following query by the court: 'Is it agreeable with the attorneys present that the plaintiff put on their case and counsel for the defendant will have an opportunity to cross-examine plaintiff's witnesses and then if the defendant is not available we will have to finish the case at some later date? Such procedure was agreed upon by counsel for both parties and it was with that understanding, we are bound to presume, that the court denied a continuance of the cause. An application for a continuance is addressed to the sound discretion of the trial court and, unless it is clearly disclosed that such discretion has been abused to the injury of the complaining party, the refusal to grant the continuance is not reversible error. City of Huntington v. Folk, 1900, 154 Ind. 91, 54 N.E. 759; Louisville, & Southern Traction Co. v. Montgomery, 1917, 186 Ind. 384, 115 N.E. 673. We can see no abuse of discretion on the part of the trial court in doing what the complaining party, in this instance the appellant, agreed should be done and hence we find no error in said court's refusal to continue the cause for trial at a later date.

II. At the close of the appellees' case below the appellant again moved for a continuance or delay in the trial for...