Peckham v. Family Loan Company, 16817.

• Decision Date: 03 April 1959
• Docket Number: No. 16817.,16817.
• Citation: 262 F.2d 422
• Parties: R. E. PECKHAM, Assignee and Trustee, etc., Appellant, v. FAMILY LOAN COMPANY et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

262 F.2d 422 (1959)

R. E. PECKHAM, Assignee and Trustee, etc., Appellant, v. FAMILY LOAN COMPANY et al., Appellees.

No. 16817.

United States Court of Appeals Fifth Circuit.

January 20, 1959.

Rehearing Denied April 3, 1959.

Jay E. Darlington, Hammond, Ind., Leo S. Julian, Miami, Fla., for appellant.

L. S. Bonsteel, W. G. Ward, Garland M. Budd, Miami, Fla., G. A. Chadwick, Jr., Washington, D. C., Frost & Towers, Washington, D. C., Smathers, Thompson & Dyer, Miami, Fla., of counsel, for appellees.

Before RIVES, TUTTLE and JONES, Circuit Judges.

JONES, Circuit Judge.

On March 1, 1949, the appellant commenced the suit which is now before us on appeal. Under the former equity practice the complaint would have been called a creditor's bill. The case has been before this Court on two other occasions. Peckham v. Family Loan Company, 1952, 196 F.2d 838; Idem 1954, 212 F.2d 100. The last of the pleadings was filed on November 19, 1954, and the cause was then at issue. The issues are made apparent in the prior opinions of this Court and in the reported opinion of the district court. Peckham v. Family Loan Co., 52 F.Supp. 169. Nearly two years later, on November 7, 1956, notice was given that the case was set for trial on February 25, 1957. A pretrial conference was had on January 31, 1957. At the pretrial conference the motion of appellant, filed September 15, 1950, was discussed and rulings were made by which production was required of most, but not all, of the documents requested by the appellant. At the pretrial conference one of appellant's counsel stated that he would be unable, because of other cases pending in other courts, to prepare this case for trial within the time remaining before the trial. The court indicated its view that there had been and would be ample time and opportunity for preparation and that a motion for continuance, if made, would be denied. Such a motion was made and was denied. The trial lasted twelve days. The reporter's transcript of the trial is in thirteen volumes with an aggregate of 1480 pages. At the conclusion of appellant's case the court announced that judgment would be entered for the appellees. A motion for a continuance, then made by the appellant, was overruled. A judgment was entered for the appellees. The appellant moved for a new trial and his motion was denied. In addition to the court's opinion, cited supra, findings of fact and conclusions of law were made in which the matters set forth in the opinion were in some respects amplified. On this appeal from the judgment the appellant raises a number of questions.

The contention upon which the appellant places the greatest stress is that he was denied a fair and adequate trial by the court's refusal to grant continuances, the court's refusal to allow prolonged questioning of witnesses, and the court's refusal to require production of documents. The granting or refusal of a motion for a continuance rests within the sound discretion of the trial court and its ruling on such a motion will not be disturbed on appeal unless an abuse of discretion is shown. Girard Trust Co. v. Amsterdam, 5 Cir., 1942, 128 F.2d 376. When the case was set for trial it had been pending for more than seven and a half years, the last pleading putting the case at issue had been on file for nearly two years, and more than three and a half months remained before the trial during which preparation could have been made for it. Although it was stated that one of appellant's counsel had other cases requiring his attention, it was not shown that these matters prevented the making of proper preparation for trial. See 17 C.J.S. Continuances § 38, p. 219. Clearly there was no abuse of discretion in the denial of the motion during the trial. As the trial was concluding a continuance was sought for the purpose of calling as witnesses two of the defendants. They were not subpoenaed and no statement was made as to what testimony was expected from them. A continuance was also sought to secure the testimony of a person who was ill. No subpoena was issued for this person, no effort was made to procure his deposition and no statement was made as to the evidence expected from the person whose testimony was desired. It was also asserted that the continuance was needed to permit the appellant to procure from some of the appellees documents to be used as evidence. It was not known to the appellant what these documents would disclose and no adequate reason was given for failure to make an earlier effort to make them available. A court could not be expected, under the circumstances here shown, to delay or continue a trial in order to permit a party to make preparation for trial. Agronofsky v. Pennsylvania Greyhound Lines, 3 Cir., 1957, 248 F.2d 829. There was no abuse of the trial court's discretion in denying the applications of the appellant for continuances.

The appellant specifies error because of the court's pretrial ruling denying the request for the production of documents in the possession of one or another of the appellees. Those which the court declined to require the appellees to produce were determined by the court to be irrelevant. So also does appellant complain that the court denied his requests made during the trial for production of documents which the court held were not relevant or were shown not to be in the possession of the appellees. No error is made to appear.

The first witness called by the appellant was the appellee, Ferd S. Meyer. On the third day of the trial,...