Shankle v. Shankle

• Citation: 289 N.C. 473,223 S.E.2d 380
• Decision Date: 06 April 1976
• Docket Number: No. 73,73
• Court: United States State Supreme Court of North Carolina
• Parties: William T. SHANKLE (widower), and William K. Shankle, Administrator of the Estate of Eli C. Shankle, Deceased, Petitioners, v. Missie G. SHANKLE (widow) et al., Respondents.

Page 380

223 S.E.2d 380

289 N.C. 473

William T. SHANKLE (widower), and William K. Shankle Administrator of the Estate of Eli C. Shankle Deceased, Petitioners, v. Missie G. SHANKLE (widow) et al., Respondents.

No. 73.

Supreme Court of North Carolina.

April 6, 1976.

Ben D. Haines, Greensboro, for petitioners-appellants.

Jones & Deane, by W. R. Jones, Rockingham, for respondents-appellees.

SHARP, Chief Justice:

Respondents' first assignment of error is that the trial court forced respondents into trial without the privilege of counsel by denying their motion for a continuance.

Continuances are not favored and the party seeking a continuance has the burden of showing sufficient grounds for it. G.S. 1A--1, Rule 40(b) provides: 'No continuance shall be granted except upon application to the court. A continuance may be granted only for good cause shown and upon such terms and conditions as justice may require.' Considering the myriad circumstances which might be urged as grounds for a continuance the Rule wisely makes no attempt to enumerate them but leaves it to the judge to determine, in each case, whether 'good cause' for a continuance has been shown. Thus, a motion to continue is addressed to the sound discretion of the trial judge, who should determine it 'as the rights of the parties require under the circumstances.' 7 Strong's N.C. Index 2d Trial § 3 (1968). However, 'this discretion is not unlimited, and must not be exercised absolutely, arbitrarily, or capriciously, but only in accordance with fixed legal principles. . . .' 17 C.J.S. Continuances § 5 (1963).

Further, before ruling on a motion to continue the judge should hear the evidence pro and con, consider it judicially and then rule with a view to promoting substantial justice. The rule has been well stated as follows:

'In passing on the motion the trial court must pass on the grounds urged in support of it, and also on the question whether the moving party has acted with diligence and in good faith. In reaching its conclusion the court should consider all the facts in evidence, and not act on its own mental impression or facts outside the record, although . . . it may take into consideration facts within its judicial knowledge. . . . The motion should be granted where nothing in the record controverts a sufficient showing made by the moving party, but since motions for continuance are generally addressed to the sound discretion of the trial court . . . a denial of the motion is not an abuse of discretion where the evidence introduced on the motion for a continuance is conflicting or insufficient. . . . The chief consideration to be weighed in passing upon the application is whether the grant or denial of a continuance will be in furtherance of substantial justice.' Id. § 97.

In this case nothing in the record contradicts respondent Newnan Shankle's affidavit, and his statement in open court, that respondents had retained and paid Mr. Richard Clark, Attorney, to represent them at the trial on 11 February 1974; that, after conferring with the trial judge who 'made strong remarks about the respondents,' Mr. Clark withdrew from the case and departed the court on the day of the trial; that respondents 'had no way of knowing this would happen to-day or they would have obtained other counsel'; that they were faced with circumstances beyond their control and without an attorney they could not have a fair trial. The court's findings that Mr. Clark made no motion for a continuance or 'filed any legal documents' in behalf of respondents does not contradict Newnan Shankle's affidavit and statement.

In Abernethy v. Trust Co., 202 N.C. 46, 161 S.E. 705 (1932), during term, and prior to the call of the action for trial, the plaintiff's counsel moved that the case be continued because of her illness. The motion was supported by the plaintiff's affidavit and the certificates of her physician. Notwithstanding, the court found that the plaintiff's condition did not entitle her to a continuance and denied the motion. From the judgment entered upon an adverse verdict the plaintiff appealed to this Court. Inter alia, she assigned as error that she had been deprived of her right to be present at her trial and to testify in her own behalf by reason of the denial of her motion for a continuance.

In the course of its serious consideration of this assignment, the Court noted (1) that the judge's finding of fact was contradicted by all the evidence in the record; and (2) that granting or refusing a continuance is in the discretion of the judge; and (3) that for this Court to review the trial judge's exercise of his discretion "would require circumstances proving beyond a doubt hardship and injustice." Specifically, the Court said: 'We think that in the absence of any evidence tending to contradict the affidavit of the plaintiff and the certificates of the physician, the court should have found that plaintiff was ill and for that reason unable to attend court during the May Term, 1931 . . .. We do not doubt that in a proper case, this court has the power, and therefore the duty, to grant a new trial, when it appears that as the result of the refusal by the trial court to allow a motion for continuance, the moving party to the action has been deprived of his right to be present at the trial, or to have witnesses whose testimony is essential to his cause present. In the instant case, the plaintiff is entitled to a new trial for error in the charge . . .. It is therefore not necessary for us to grant a new trial upon the ground that there was prejudicial error in the refusal of the trial court to allow the motion for continuance.' Id. at 48, 161 S.E. at 706.

Although in Abernethy v. Trust Co., supra, the motion to continue involved the presence of the party plaintiff at her trial, its rationale may be equally applicable to the absence of the party's attorney. In this regard, the general rule is that an attorney's withdrawal on the eve of the trial of a civil case is not Ipso facto grounds for a continuance. See Annot.; 'Withdrawal or discharge of counsel in civil case as a ground for continuance,' 48 A.L.R.2d 1155 (1956); 17 C.J.S. Continuances § 23 (1963). In accordance with the established principles hereinbefore outlined, the decision whether to grant a continuance because the moving party's attorney has withdrawn from the case on the day of trial rests in the trial judge's discretion, to be exercised after he has determined from the facts and circumstances of the particular case, whether immediate trial or continuance will best serve the ends of justice.

The facts in Smith v. Bryant, 264 N.C. 208, 141 S.E.2d 303 (1965) are analogous to those we now consider. In Smith v. Bryant, an action for an alleged trespass causing damage to the plaintiff's land, the plaintiff...