Perdue Housing, Inc. v. Davis, 50921
| Decision Date | 25 July 1978 |
| Docket Number | No. 1,No. 50921,50921,1 |
| Parties | PERDUE HOUSING, INC., and Housing Authority of the City of Wewoka, Oklahoma, Appellees, v. Leo J. DAVIS, City of Wewoka, a Municipal Corporation, Board of County Commissioners of Seminole County, Oklahoma, Appellants |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Appeal from the District Court of Seminole County; Frank H. Seay, judge.
AFFIRMED.
Richard S. Roberts, Wewoka, for appellees.
Mattingly, Dawson & Conyers by Howard W. Conyers, Seminole, McKeever, Glasser, Conrad & Herlihy, Enid, for appellants.
An appeal by Leo J. Davis, defendant, from the order of the trial court vacating plat restrictions on lots owned by plaintiffs-appellees, Perdue Housing, Inc. and the Housing Authority of the City of Wewoka, Oklahoma.
Plaintiffs are the record owners of one hundred twenty-four lots on six blocks in the Foresee Addition to the City of Wewoka. Plaintiffs brought suit against the City of Wewoka and the Board of County Commissioners of Seminole County to vacate that portion of the original plat of the Foresee Addition pertaining to their lots and return the lands to their original unplatted and unrestricted status. Plaintiffs planned to build multi-family dwellings on their property. Before the federal loan to build the units could be consummated, the plat restrictions against multi-family dwellings had to be abolished and a zoning classification compatible with multi-family dwellings established. Mr. Davis owns six lots in the Foresee Addition upon which single family dwellings had previously been constructed. Mr. Davis was also named a defendant in the cause of action but no attempt was made to change the plat restrictions upon the land owned by Mr. Davis.
The hearing on the action was held on March 28, 1977 and the trial court granted the relief requested by plaintiffs; the plat was vacated as to the lots owned by plaintiffs and their land was returned to the original unplatted and unrestricted status. Mr. Davis was decreed to have no right, title, interest or estate, legal or equitable, in plaintiffs' lots. Mr. Davis is the only defendant who appealed from the trial court's holding. His two propositions of error are: (1) The trial court erred in denying defendant's request for a continuance; and (2) the trial court erred in vacating a portion of the plat of the Foresee Addition.
According to the statement of proceedings in lieu of record on appeal, Mr. Davis' attorney orally moved for a continuance for the reason that he was unable to locate his client during a period of several days before the March 28th hearing. The attorney for Mr. Davis stated further that his client desired to present evidence in support of disallowing plaintiffs' petition. The trial judge overruled the oral motion for a continuance and Mr. Davis presented no evidence in support of his position.
Mr. Davis was both a party to the lawsuit and, as argued in his brief, a material witness. In Mr. Davis' brief, the statement is made that the request for continuance was made because testimony uniquely within Mr. Davis' knowledge was material to the objections to plaintiffs' plans for the property involved. Different factors are considered when the request for continuance is sought because of the absence of a party, or because of the absence of a witness, Beck v. Peard, 183 Okl. 195, 80 P.2d 614, although the underlying standard for review in either case is whether the trial court abused its discretion in denying the continuance. See Herbert v. Chicago, Rock Island & Pacific R. R. Co., Okl., 544 P.2d 898 (absent witness); Raines v. Gifford, Okl., 370 P.2d 1 (absent party).
When dealing with the absence of a witness, 12 O.S. 1971, § 668 must be followed. Section 668 provides:
A motion for a continuance, on account of the absence of evidence, can be made only upon affidavit, showing the materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it, and where the evidence may be; And if it is for an absent witness, the affidavit must show where the witness resides, if his residence is known to the party, and the probability of procuring his testimony within a reasonable time, and what facts he believes the witness will prove, and that he believes them to be true. If thereupon, the adverse party will consent that on the trial the facts, alleged in the affidavit shall be read and treated as the deposition of the absent witness, or that the facts in relation to other evidence shall be taken as proved to the extent alleged in the affidavit, no continuance shall be granted on the ground of the absence of such evidence. (Emphasis added.)
No affidavit was filed by Mr. Davis' attorney. The record on appeal is void of any writing containing the information required by Section 668. There is no indication whether Mr. Davis' testimony could be procured within a reasonable time, no statements of the facts Mr. Davis was to prove nor a statement that they were believed to be true. Under these circumstances, we find that the trial court did not abuse its discretion in refusing to grant a continuance upon the ground of an absent witness. Terrapin v. Barker, 26 Okl. 93, 109 P. 931.
Mr. Davis was also a party to the lawsuit and a continuance in this circumstance can be requested so the party can be present to assist counse...
To continue reading
Request your trial