Schwartz v. Parsons

• Decision Date: 11 May 1899
• Docket Number: 2,796
• Citation: 53 N.E. 785,22 Ind.App. 340
• Parties: SCHWARTZ, ADMINISTRATOR, v. PARSONS, GUARDIAN
• Court: Indiana Appellate Court

53 N.E. 785

22 Ind.App. 340

SCHWARTZ, ADMINISTRATOR, v. PARSONS, GUARDIAN

No. 2,796

Court of Appeals of Indiana

May 11, 1899

From the Floyd Circuit Court.

Reversed.

Charles L. Jewett and Henry E. Jewett, for appellant.

Kelso & Kelso, for appellee.

OPINION

WILEY J.

John Parsons was an insane person, and incapable of managing his own estate. Annie E. Parsons was his wife, and the Floyd Circuit Court appointed her his guardian. She gave bond, and entered upon the duties of her trust. Upon his death she filed her account in final settlement. Appellant was appointed administrator of his estate, and was duly qualified. As such administrator, he appeared in the court below and filed exceptions to the guardian's final report. To the exceptions the guardian filed a general denial. The case was set for trial on the exceptions, and when called, appellant through his attorneys, made an application for a continuance, and filed the affidavit of one of the attorneys in support of it. The application for a continuance was based upon the absence of appellant, and the affidavit showed that his absence was caused by sickness which confined him to his bed. The affidavit also stated that appellant was a material and competent witness in his own behalf, or rather in behalf of the estate he represented, and set out fully all the facts to which he would testify, if present at the trial. The affidavit was supported by a letter from appellant's wife, and a certificate of his attending physician, showing that he was unable to be in court. The affidavit further showed that appellant at the time lived at Elwood, Indiana, being over 125 miles from New Albany. It was further stated in the affidavit that appellant's attorneys could not safely go to trial in the absence of their client, for the reason not only that he was a material and competent witness, but by reason of the further fact that he had carefully and diligently examined said accounts of appellee as guardian and that, in his absence, they could not properly present his defense and objections to said final report, etc. The facts stated in the affidavit, as to what the evidence of appellant would be if present, were amply sufficient to support his motion for a continuance, but such continuance, on that ground, was obviated by appellee admitting in open court that if appellant was present he would testify to the facts stated. Upon the trial, at the request of appellant, the court made a special finding of facts, and stated its conclusions of law thereon, and rendered judgment approving the appellee's final report, and discharging her from further liability, and declaring the trust finally settled.

Appellant's motion for a new trial was overruled, and such ruling is the only error assigned. One of the reasons assigned for a new trial was the refusal of the court to continue the cause upon appellant's application, and counsel have confined their discussion to the question presented by that part of their affidavit in support of the motion relating to the necessity of appellant's presence at the trial to aid them in developing the facts, etc. The rule in this State is firmly settled and well grounded that an application for a continuance is addressed to the sound discretion of the trial court, and that the action of the court thereon will not be reversed, unless it clearly appears that the discretion of the court has been erroneously exercised. Moulder v. Kempff, 115 Ind. 459, 17 N.E 906; Cerealine, etc., Co. v. Bickford, 129 Ind. 236, 28 N.E. 545. In Welcome v. Boswell, 54 Ind. 297, an application for a continuance was made, on account of the absence of appellant, but the motion was overruled. The court by Niblack, J., said: "When the application is made on account of the absence of a witness, merely, certain formal and necessary facts must be shown by affidavit, to entitle the party to a continuance. * * * In other cases, good cause only need be shown by affidavit or otherwise. * * * In the case before us, the appellant was more than a witness in his relations to the action. He was also a defendant, and the only defendant in the cause. The rule, therefore, governing the application for a continuance on account of the absence of an ordinary witness, was not, in our opinion, strictly applicable to him, in the motion made in his behalf for the continuance of this cause. His application, we think, was not within any strict statutory rule, but was addressed to the sound legal discretion of the court. * * * We think that, in the exercise of a proper judicial discretion, the court below ought to have continued the cause, and...