Maund v. Loeb

• Citation: 87 Ala. 374,6 So. 376
• Parties: MAUND v. LOEB ET AL.
• Decision Date: 21 June 1889
• Court: Alabama Supreme Court

6 So. 376

87 Ala. 374

MAUND v. LOEB ET AL.

Supreme Court of Alabama

June 21, 1889

Appeal from circuit court, Henry county; J. M. CARMICHAEL, Judge.

This was an action of trover for the alleged wrongful conversion of certain personal property, and was brought by the appellees, J. Loeb & Bro., against the appellant, W. T Maund. The bill of exceptions shows no evidence of the wrongful conversion, or of any facts except such as bear upon the continuance of the cause. When the cause was called for trial in September, 1888, the court granted a continuance to defendant, and the following order was entered of record which defendant agreed to: "Continued by the defendant upon payment of all costs to date as condition precedent, to be paid in 90 days, or judgment to go against defendant at next term." Upon inquiry by the court as to whether the costs had been paid within 90 days from the date of continuance, it was found that defendant had failed to pay the costs as required in the order. Defendant then offered to prove that no bill of costs, with itemized statement, had been furnished him by the clerk, the sheriff, or any other person; and, further, that he had no knowledge of the terms imposed by the said order of continuance; and, further, that he had paid all of the costs on the first day of the term at which these proceedings were had. Plaintiffs objected to the introduction of this testimony, and the court sustained the objections. Defendant appeals, and assigns the ruling of the court on the evidence, and the refusal to give the several charges asked by defendant as error.

J F. Roper, for appellant.

R H. Walker and Watts & Son, for appellees.

CLOPTON J.

The continuance of a case is in the discretion of the court, and such terms may be imposed, under the rule of practice, as to the court shall seem proper. At the fall term, 1888, of the circuit court defendant obtained a continuance upon payment of all the costs as a condition precedent, to be paid in 90 days, or judgment to go against him at the next term. The costs were not paid until the first day of the next term, and after the case was called for trial, which was more than 90 days from the time of the order. Defendant having applied for, obtained, and accepted the continuance, we must infer that he consented to the terms upon which it was granted. It was no excuse that an itemized bill of costs had not been furnished, when it is not shown...