Theodore R. Troendle Coal Co. v. R. Morgan Coal, Coke & Mining Co.

• Decision Date: 09 December 1908
• Citation: 114 S.W. 312
• Parties: THEODORE R. TROENDLE COAL CO. v. R. MORGAN COAL, COKE & MINING CO.
• Court: Kentucky Court of Appeals

114 S.W. 312

THEODORE R. TROENDLE COAL CO. v. R. MORGAN COAL, COKE & MINING CO.

Court of Appeals of Kentucky.

December 9, 1908

Appeal from Circuit Court, Christian County.

"Not to be officially reported."

Action by the R. Morgan Coal, Coke & Mining Company against the Theodore R. Troendle Coal Company. Judgment for plaintiff and defendant appeals. Reversed, with directions.

Downer & Russell, for appellant.

R. Y Thomas and C. H. Bush, for appellee.

CARROLL J.

The only question presented by this appeal is whether or not the trial court erred in refusing to grant appellant a continuance. The suit was brought in February, 1906, by appellee, plaintiff below, to recover from appellant defendant below, the sum of $1,097.95, with interest, the amount alleged to be due as a balance on coal sold and delivered by plaintiff to the defendant. In February, 1906, an answer, setoff, and counterclaim was filed, and at different times during 1906 and 1907 other pleadings were filed by each of the parties. The case was continued generally four times, and once on motion of appellant. On March 13, 1908, a day in the February term, the case was called for trial, and the plaintiff tendered a reply to an amended answer and counterclaim that was filed by the defendant in February, 1907, and the same was ordered to be filed. The plaintiff then offered to file an amended petition, to which the defendant objected, the objection was overruled, and the amended petition filed. The defendant then moved the court to continue the case on account of the absence of Col. Bennet H. Young, attorney for defendant, and T. R. Troendle and S. A. Edmonds, witnesses in its behalf. The motion for a continuance was overruled, and thereupon counsel for the defendant voluntarily left the courtroom. Afterwards a jury was impaneled, evidence in behalf of the plaintiff was introduced, and the jury, in pursuance of an instruction to that effect, returned a verdict in favor of plaintiff for the amount claimed.

It is insisted for appellant that the court should have granted a continuance, first, because the amended petition, filed when the case was called for trial, presented new issues, and, second, because of the absence of the attorney and witnesses named. Although the action had been pending fully two years, the delay was not altogether the fault of the defendant, as four continuances were had by agreement of the parties and only one upon its motion. If the amended petition changed in any material way the cause of action stated in the original petition, the defendant, if it preserved in the proper way its rights, should not have been forced into trial without an opportunity to prepare for the new state of facts set up in the amendment; and so, if due diligence was used to procure the evidence or personal presence of the absent witnesses, and their evidence was material, and the failure to procure one or the other not due to any fault or negligence on the part of the defendant, it was reversible error to force a trial in their absence.

The contention that a continuance should have been granted on account of the absence of Col. Bennet H. Young may be dismissed without much discussion. The defendant at all times during the pendency of the action, and when it was called for trial, was represented by two competent lawyers. These attorneys prepared all the pleadings for the defendant and were the only attorneys of record. Col. Young, so far as the record shows, never had any connection with the case until another corporation, of which he was counsel, purchased the business of the defendant and became interested in this way in the litigation. Under these circumstances the absence of Col. Young did not furnish any reason for a continuance. Cook v. Com., 114 Ky. 586, 71 S.W. 522; Cornelius v. Com., 64 S.W. 412, 23 Ky. Law Rep. 771.

It seems that the absent witnesses were subpoenaed in Louisville, Jefferson county, Ky. at which place Troendle lived, and where Edmonds, who was a resident of Christian county, was sick and under the care of a physician at the time. The subpoena was executed on them--or rather accepted by them--on the 11th day of March, two days before the case was called for trial, but in ample time for them to have been present, if they desired to be and were not prevented by unavoidable casualty from attending. Troendle, who was really the defendant in the action, and who should in the exercise of due diligence have been present, sent an affidavit, sworn to by him on the 11th day of March, stating that his company was not ready for trial on account of the absence of Col Young, who was then in a distant state. He did not give any other reason for asking a continuance, or any...