Sechrist v. Bryant
| Decision Date | 02 January 1923 |
| Docket Number | 3782. |
| Citation | 286 F. 456 |
| Parties | SECHRIST v. BRYANT. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Submitted October 18, 1922.
Stay of Mandate Denied February 9, 1923.
H Ralph Burton and William H. Boyd, both of Washington, D.C for plaintiff in error.
Tench T. Marye and Clyde D. Garrett, both of Washington, D.C., for defendant in error.
Before SMYTH, Chief Justice, ROBB, Associate Justice, and SMITH Judge of the United States Court of Customs Appeals (sitting in the place of VAN ORSDEL, Associate Justice).
Wallace Bryant, the defendant in error, filed on the 9th of November 1921, a declaration in the municipal court of the District, complaining that the tenancy of premises rented by him to Ida M. SeChrist had been determined by default in the payment of the rent provided for in the agreement which established the tenancy, and that possession of the premises was withheld from him by her, notwithstanding a notice to quit in accordance with the agreement. On filing the declaration, a summons was issued commanding the plaintiff in error to appear and make answer on the 22d of November, 1921, at 10 o'clock a.m., and notifying her that, if she failed to do so, she would be proceeded against as in case of default. The summons was served by the marshal, as shown by his return dated November 11, 1921.
The bill of exceptions makes it clear that the plaintiff in error did not retain counsel until the day before she was required to appear and make answer to the declaration. The attorney whom she engaged to represent her knew at the time he was retained that he would be required to proceed on the following day with the trial of another case in another branch of the municipal court at the very hour set for the appearance and answer of the plaintiff in error. Nevertheless he accepted employment on the assumption that he would be able to secure a continuance of Bryant v. SeChrist, and took the hazard of a denial of the motion for lack of merit. By indulgence of the court having jurisdiction of the other case, counsel for plaintiff in error appeared at the hour set for the hearing of Bryant v. SeChrist, and moved that the hearing thereof be continued on account of his inability to attend by reason of his professional engagements elsewhere. His motion was denied, and, being unable to go on with the trial, judgment was entered against his client.
The matter is brought to this court by writ of error, and plaintiff in error in support of the writ contends, first, that the motion for a continuance should have been granted; second, that the municipal court had no jurisdiction of the subject-matter of the litigation; third, that the writ of restitution should not have been granted on the day following the entry of judgment, and after notice of intention to apply for a writ of error had been given; fourth, that the municipal court erred in requiring defendant immediately after entry of judgment to furnish an undertaking on appeal in order to stay execution of said judgment.
The motion for a continuance was addressed to the sound discretion of the municipal court, and on the undisputed facts we cannot say that its denial was an abuse of discretion.
Attorneys cannot, of course, be in two places at once, and courts ought to be and are indulgent in granting continuances, where counsel and the parties represented by them, without fault of their own, are confronted with the impossible situation of proceeding with trials of different cases set for hearing for the same day and hour in different courts. If, however, parties to litigation neglect to engage counsel until the day before an issue comes on regularly for hearing, and if counsel accept employment with full knowledge that, because of other commitments, they will be unable, at the time required, to render the service for which they are employed, it cannot be said that the client was diligent, or that counsel was prevented from performing his professional duty by unavoidable circumstances, or by an unforeseen contingency.
Plaintiff in error should not have permitted 10 days...
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