Lynch v. Peterson
| Decision Date | 15 May 1923 |
| Docket Number | 11515. |
| Citation | 215 P. 617,91 Okla. 28,1923 OK 268 |
| Parties | LYNCH v. PETERSON ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Under section 582, Comp. St. 1921, a cause stands for trial when the issues are once made up by the filing of pleadings, or by the failure to file them, at any time more than 10 days thereafter.
When the issues have once been fully made up by the filing of pleadings, or by failure to file them, the provision of the statute mentioned in the foregoing paragraph has spent its force, and thereafter any change in the issues caused by the filing of new or amended pleadings, by leave of the court or consent of the parties, does not, by reason of said action necessarily work a delay of the trial.
Granting or refusing to grant, the continuance of a cause rests largely in the sound judicial discretion of the court, and in the absence of abuse of such discretion, the ruling of the trial court will not be disturbed here.
Where a continuance is sought on account of the absence of a party to the action, unless it clearly appears that the court abused its discretion in overruling motion for continuance, this court will not disturb the action of the lower court.
Commissioners' Opinion, Division No. 5.
Appeal from District Court, Pontotoc County; J. W. Bolen, Judge.
Action by Dewey Lynch, née Dewey Smith, against J. D. Peterson and another. From a judgment for defendants, plaintiff appeals. Affirmed.
A. W Wadlington and B. C. Wadlington, both of Ada, for plaintiff in error.
King & Crawford and H. West, all of Ada, for defendants in error.
The parties will be hereinafter referred to as plaintiff and defendants, as they appeared in the lower court.
Plaintiff commenced this action in the district court of Pontotoc county, Okl., by filing her petition on the 20th day of April, 1918. Defendant J. D. Peterson filed demurrer on the 11th day of May, 1918; demurrer overruled, and defendant J. D. Peterson filed his answer on the 17th day of October, 1918. On January 13, 1920, by permission of court, plaintiff filed reply out of time. On the 14th day of January, 1920, defendant R. J. Peterson voluntarily appeared and filed his separate answer, and on the 19th day of January the case was called regularly for trial, and the plaintiff filed motion for continuance, in substance as follows:
That the issues of the case had not been made up 10 days prior; that there was an answer filed in the cause on the 14th day of January, 1920, and prayed that the case be stricken from the trial docket; that plaintiff Dewey Lynch, née Smith, was sick and confined with a five months old infant, and was unable to appear and prosecute the case; that it was material that she should be at the trial to make proof in the prosecution of the same; that plaintiff would be ready for trial of the cause next term, upon which the evidence of plaintiff's husband was taken. In substance, he testified that his wife was ill; that she did not have any doctor; that she had taken calomel yesterday; that she was not in bed, was not able to attend court yesterday, and did not know whether she was to-day or not; that he did not know whether she would be able to attend court on Friday or not; and that he had one witness, who was in attendance in court; and the court, upon this showing, continued the case over until Friday, January 23, 1920, at 1 o'clock, over the objection of plaintiff that the pleadings had not been made up 10 days before said date. That thereafter, on the 23d day of January, 1920, there was filed the following motion for continuance:
"Now comes the plaintiff, by her husband, S. C. Lynch, and B. C. Wadlington, attorney for plaintiff, and moves the court to grant the plaintiff a continuance in this cause to the next term of this court for the following reasons, to wit: That the plaintiff lives two miles southwest of Roff, Oklahoma, and about 17 miles from Ada, Oklahoma; that the plaintiff has a five-months infant, and that the weather has been and is now very bad, and the rain and snow have made the road almost impassable from plaintiff's home to the railroad and it is now almost impassable; that the plaintiff has been and is now in delicate health, and that in the opinion of affiant it would be dangerous to attempt to bring the plaintiff through this weather; that the issues in this case have not been made up 10 days before this date; that it is material that the plaintiff be at the trial of this case and assist in the prosecution of same; that this continuance is not made for delay, but that justice may be done, and she expects to be ready at the next sitting of this court."
Defendant R. J. Peterson withdrew his answer filed on the 14th day of January, 1920, and entered a disclaimer, after which the court, having heard the motion for continuance, overruled the same, to which plaintiff excepted. The defendant announced ready for trial, and the plaintiff objected to going to trial, and stood on her motion for continuance, and refused to proceed in the trial of the cause. A jury was impaneled and sworn, and the defendant J. D. Peterson introduced his testimony and rested, and the jury returned its verdict, under instructions of the court, in favor of J. D. Peterson, and on the same day and date plaintiff filed motion for new trial, which was overruled. On the 23d day of January, 1920, the court rendered judgment on the verdict of the jury that plaintiff take nothing by reason of this suit, and that defendants and both of them have judgment against the plaintiff for their costs expended, and plaintiff appeals.
The question presented for our consideration is: Did the court err in overruling motion for continuance on the grounds, first, that the pleadings and issues had not been made up full 10 days before the trial; second, on account of the absence of the plaintiff, under the circumstances set forth in the affidavit for continuance. The statute of our state, found at section 582, vol. 1 of Comp. Okl. Stat. 1921, is as follows:
The plaintiff filed her petition on the 20th day of April, 1918 and defendant J. D....
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