Smith v. Brand

• Decision Date: 31 January 1872
• Parties: ROBERT M. SMITH, plaintiff in error. v. M. B. BRAND, defendant in error.
• Court: Georgia Supreme Court

44 Ga. 588

ROBERT M. SMITH, plaintiff in error. v. M. B. BRAND, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1872.)

New Trial. Continuance. Absence of Counsel. Before Judge Davis. Walton Superior Court. August Term, 1871.

Smith filed a bill for discovery and for an account and settlement of a partnership between himself and Brand, averring that Brand was in his debt. Brand, by his counsel, John J. Floyd, answered, admitting the partnership, etc., but denied that he owed Smith anything. At an adjourned term, Brand moved to continue for the absence of his leading counsel, Floyd and Billups, but why they were away did not appear. It was tried in the absence of Floyd and Billups, and resulted in a verdict for Smith. A motion for a new trial was made upon the grounds that the Court erred in refusing the continuance, and in his charge, and that the verdict was contrary to the evidence, etc. When this motion came on to be heard, John J. Floyd and J. A. Billups, counsel for Brand, proposed to state, in their places, "as preliminary to said hearing, " why they were not present at said trial. This was objected to because it would be adding to the completed brief of evidence, and that it was immaterial why they were absent, inasmuch as these reasons were not made known when the motion for continuance was made.

It appeared that at August Term, 1870, the Court announced that he would hold an Adjourned Term on the third Monday in November. Floyd said he could not be present. The Court replied that Colonel Walker (Smith's counsel) had leave of absence from said Adjourned Term, and then Floyd urged no further objection. The Court made a second adjournment till the second Monday in December. By this time Walker's leave had expired, and he was present.

Floyd stated that he filed the answer, and was leading counsel. But as he did not attend the Court always till its ending, Billups was also employed to assist him, if present, or to manage and control the case if Floyd were gone. He had returned homefatigued the Saturday before Court, was told by Colonel Clark that this second Adjourned Term *would be held, and he told Clark that he was not going. (Whether he knew Walker was to be present does not appear.) Billups showed that sudden sickness in his family prevented his going to the Court or sending any excuse. The Court granted a new trial. That is assigned as error.

Walker & McDaniel; W. W. Clark; Hillyer & Brother, for plaintiff in...