Miller v. Brown
| Decision Date | 06 May 1910 |
| Citation | 109 P. 139,18 Idaho 200 |
| Parties | NICK MILLER, Respondent, v. JOHN BROWN, Appellant |
| Court | Idaho Supreme Court |
APPLICATION FOR CONTINUANCE-ADDRESSED TO SOUND DISCRETION OF COURT.
(Syllabus by the court.)
1. An application for a continuance is addressed to the sound legal discretion of the court, and the decision of the court or judge thereof will not be reversed unless there is a clear abuse of discretion.
2. Held, under the facts of this case that the motion for a continuance was properly denied.
APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Wm. W. Woods, Judge.
Action to recover balance due upon the sale of certain mining claims. Judgment for plaintiff. Affirmed.
Judgment affirmed, with costs in favour of respondent.
Gray & Knight, and William K. Shissler, for Appellant.
Where parties have been diligent in their efforts to be ready for trial, but have been prevented by circumstances beyond their control, the court should grant them a continuance. (Radford v. Fowlkes, 85 Va. 820, 8 S.E. 817.)
While a motion for a continuance is addressed to the sound discretion of the court, there is a point where it ceases to be a question of discretion or abuse of discretion, and a party acquires a right to a continuance as a matter of law. (1 Spelling, New Trial, sec. 126.)
It is a judicial discretion not to be capriciously or oppressively exercised. (Mitchell v. Campbell, 14 Ore. 454, 13 P 190; People v. Plyler, 121 Cal. 160, 53 P. 553.)
It is the right of parties to be present at the trial of their cases. It seldom happens that a trial can be properly had in the absence of a party, even where he is disqualified as a witness, especially where it is to be tried on oral testimony. (Spelling, New Trial, sec. 128; Jaffe v Lilienthal, 101 Cal. 175, 35 P. 636; Storer v. Heitfeld, 17 Idaho 113, 105 P. 55; 9 Cyc. 93; Mayton v. Guild (Tex. Civ. App.), 29 S.W. 218; Helm v. Voils, 58 Kan. 816, 49 P. 662; Donallen v. Lennox, 6 Dana (Ky.), 89.)
Where the defendant is necessarily, although temporarily, out of the state and the continuance asked for is but a short time, it should be granted, provided the defendants have been guilty of no unreasonable delay or negligence. (Robertson v. Woolley, 6 Wash. 156, 32 P. 1060.)
Where, as in the case at bar, the attorney's absence is due to the fact that he is actively engaged in the trial of a case in another jurisdiction, having had no notice whatever of the time fixed for the trial of the case, the continuance should be allowed.
Featherstone & Fox, for Respondent.
The absence of the defendant at the time his case is called for trial is not sufficient ground for a continuance. (Queirolo v. Queirolo, 129 Cal. 686, 62 P. 315; Paulucci v. Verity, 1 Kan. App. 121, 40 P. 927; Cochrane v. Parker, 12 Colo. App. 169, 54 P. 1027; Cohn v. Brownstone, 93 Cal. 363, 28 P. 953; West v. Hennessey, 63 Minn. 378, 65 N.W. 639; Richardson v. Dinkgrave, 26 La. Ann. 651; Schlessinger v. Nunan, 26 Ill.App. 525; Jaffe v. Lilienthal, 101 Cal. 175, 35 P. 636.)
In most cases a continuance on the ground of absence of counsel will be refused. (Baumberger v. Arff, 96 Cal. 261, 31 P. 53; Keegan v. Donnelly, 11 Colo. App. 31, 52 P. 292; Reynolds v. Campling, 23 Colo. 105, 46 P. 639; Cox v. Allen, 91 Iowa 462, 59 N.W. 335; Hayne, New Trial and Appeal, secs. 76, 77.)
"Due diligence is a question upon which the decision of the trial court is always presumably correct." .)
This action was brought to recover a balance of $ 11,495 with interest thereon, alleged to be due upon the sale of certain mining claims, to the defendant John Brown. An application for a continuance was made by the appellant, John Brown, and overruled by the court. Thereafter the cause was tried by the court without a jury and a judgment was entered in favor of the plaintiff for the sum of $ 13,089.50, together with costs, which judgment was made a lien upon certain mining claims and also directed the foreclosure of said lien and the sale of said mining claims to satisfy said judgment. Thereafter a motion was made by said appellant to set aside the findings of fact and judgment, for the reason that the trial of said action was had in the absence of the defendant, and for the further reason that said defendant had no notice prior to the trial of said action of the setting of said case for trial, and that the defendant had no opportunity to secure the attendance of his witnesses. This motion was denied and the appeal is from the judgment and from the order denying the motion to set aside the findings and judgment.
The question presented by the appellant in his brief is whether the court erred in denying his application for a continuance. Said motion for a continuance was based on the affidavit of Henry P. Knight, one of the attorneys for the appellant.
It appears from the record that on June 23, 1909, the trial court set this case for trial on the following day, the 24th of June, which was the 92d judicial day of the regular January, 1909, term of that court. The motion for a continuance came on for hearing on that day and, as stated, was denied by the court. The question presented is, whether the court abused its discretion in denying said motion for a continuance.
The facts presented to the court for a continuance are found in Mr. Knight's affidavit. It appears from that affidavit that the affiant is a member of the firm of Gray & Knight and was not informed that his firm was interested in said action until the 23d day of June, 1909; that Mr. Barnes, residing at Spokane, Washington, was the principal attorney for the defendant in said action and had had charge of all of the pleadings in said case in preparing the same for trial; that all correspondence in connection with said case had been conducted by said Barnes with affiant's law partner, Mr. Gray, who had for more than ten days prior to the date said case was set for trial been in the eastern states on business, and that said Gray had not informed affiant of their firm's connection with said action; that when he was informed thereof, he immediately called up Mr. Barnes at Spokane by telephone and had a conversation with him in regard to the case. In that conversation Mr. Barnes stated that he had no notice of the fact that the said action would be called for trial until the afternoon of that day, the 23d of June, when he received a telegram from Mr. Hand, one of the attorneys for the plaintiff, to that effect. Said Barnes informed the affiant that his client, John Brown, was then in Winnepeg, Canada, and his presence could not at that time be procured; that defendant had gone to Winnepeg without knowledge of the fact that said case would be for trial at that term of court. It is further stated by affiant that if the trial could be continued until some time after the 10th of July, 1909, said appellant could be present and said action tried; that said Barnes further stated to affiant that no other witness could be immediately procured by whom the defendant could prove the facts necessary to maintain his action, and that there were no other witnesses except said Brown who knew the facts and all of the facts necessary to maintain said defendant's contention; that if said action was forced to trial at that time, it would be impossible for the defendant properly, or in any manner, to present his case and would therefore necessarily result in great injustice to him.
The application for a continuance was heard upon the records and files and said affidavit. This court has held in numerous decisions that an application for a continuance is addressed to the sound legal discretion of the court, and its ruling will not be reversed unless it appears that such discretion has been abused. (See Storer v. Heitfeld, 17 Idaho 113, 105 P. 55, where all of those decisions are collated.)
Then, did the court abuse its discretion in granting said continuance?
It appears that the day on which the case was set for trial, to wit, the 23d of June, was the ninety-first judicial...
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