1. None of the special grounds of the motion for a new trial shows error, the evidence authorized the verdict rendered, and the trial judge properly overruled the plaintiff's motion for a new trial.
2. A party, in order to obtain a continuance, must show a compliance with the provisions of Code § 81-1410, and as it does not appear that the absent witness was subpoenaed, that there were not other witnesses on hand by whom the same facts could be proved, and that the absent witness would be present at the next term, the trial court properly denied the motion for continuance.
DECIDED FEBRUARY 3, 1953 — REHEARING DENIED FEBRUARY 28, 1953.
William A. Thomas, a practicing attorney, filed suit in DeKalb Superior Court against Louis Ferrier and one Ferguson, in which the plaintiff sought to recover of Ferrier $350 as a reasonable attorney's fee, alleging that he had represented Ferrier in certain litigation relative to Ferrier's wife, wherein a divorce was obtained and the wife's claim for alimony opposed, and wherein an injunction against the wife was procured. In his petition Thomas set up that Ferrier had conveyed and transferred his realty to the defendant Ferguson in order to defeat the claim of the plaintiff and he asked that the deed be set aside. The plaintiff further alleged that Ferrier had wrongfully discharged him as his attorney, that he was Ferrier's counsel under an agreement wherein the said defendant agreed to pay the plaintiff a reasonable fee for his legal services, and that he had been discharged and another lawyer employed by Ferrier without the plaintiff having been paid a reasonable attorney's fee for the services performed, which services the plaintiff set forth in detail. The defendant answered denying that he was liable to the plaintiff for any attorney's fee and alleging that he had paid the plaintiff for all services performed by him, and that the suit was brought to obtain money from such defendant, to which the plaintiff was not entitled, and to annoy and vex the defendant and force him to pay out money which the plaintiff knew was not owing to him by said defendant. The defendant thereupon set up by way of counterclaim and cross-action that he had been compelled to employ attorney Russell G. Turner to represent him in defending this suit, and that the plaintiff be required to pay the expense thereof, same being a reasonable attorney's fee of $350.
The plaintiff demurred, generally and specially, to that portion of the defendant Ferrier's plea and answer in which he sought to recover against the plaintiff. The trial judge overruled said demurrers, and to this judgment the plaintiff excepted pendente lite, and assigns error on such exceptions.
The case was called for trial in said superior court before Honorable Frank Guess, one of the judges thereof and a jury. The plaintiff thereupon moved for a continuance of the case on the ground that one of his chief and material witnesses upon whom he was relying to show that he had performed valuable services for Ferrier under his contract of employment as Ferrier's attorney, to wit, Miss Celestine Sibley, an Atlanta Constitution newspaper writer, was at the time temporarily sojourning in the State of California. The court denied the plaintiff's motion for a continuance and directed that the case proceed to trial before Judge Clarence Vaughn of Vaughn of said court. To this judgment the plaintiff excepted and filed with the clerk of said court his bill of exceptions pendente lite. The plaintiff assigns error in the present bill of exceptions on such pendente lite exceptions.
Thereupon said case came on for trial, and at the conclusion of the evidence, a verdict was rendered finding in favor of the defendant, that he was not indebted to the plaintiff for the attorney's fee sued for, and also finding in favor of Ferrier on his cross-action in the sum of $250 as a fee for his attorney, Russell G. Turner. The plaintiff, within due time, filed his motion for new trial on the general grounds. On April 3, 1952, the plaintiff amended such original motion for a new trial by adding thereto one special ground, and on September 25, 1952, before any ruling on the motion for a new trial, the plaintiff again amended his motion for new trial by adding thereto seven additional special grounds, dealing with newly discovered evidence, the charge of the court, illegal admission and rejection of testimony, and that the verdict was excessive. The defendant Ferrier requested that the court write off from said verdict and judgment in his favor the $250 recovered against the plaintiff, and this was accordingly done. The trial court denied the plaintiff's amended motion for new trial, and to this judgment the plaintiff excepts.
GARDNER, P. J.
1. The plaintiff contends that a new trial should be granted because the court erred in overruling his demurrers, general and special, to that portion of the defendant Ferrier's plea, answer and cross-action or counter-claim, in which he sought to recover against the plaintiff the fees of the attorney defending the case brought by the plaintiff. Most of plaintiff's brief in this court is devoted to the citation of authority and argument in support of this contention. However, as we view the matter, the questions raised by these exceptions are now moot and need not be considered by this court. The record affirmatively shows that the defendant Ferrier voluntarily wrote off the recovery in his favor based on this cross-action. In these circumstances, no harm resulted to the plaintiff from the ruling on said demurrers.
2. The court denied the motion of the plaintiff for a continuance of the case on the ground that one of his material witnesses, Miss Celestine Sibley, was at the time temporarily in California, and asking that the case therefore be continued until she returned.
"In all applications for continuances upon the ground of the absence of a witness, it shall be shown to the court that the witness is absent; that he has been subpoenaed; that he resides in the county where the case is pending; that his testimony is material; that such witness is not absent by the permission, directly or indirectly, of such applicant; that he expects he will be able to procure the testimony of such witness at the next term of the court; and that such application is not made for the purpose of delay, but to enable the party to procedure the testimony of such absent witness; and must state the facts expected to be proved by such absent witness." Code, § 81-1410. The movant for a continuance must show a compliance with this section, and that the testimony of the absent witness would be material, and such testimony must be set forth, and also that the movant has made every effort to procure such testimony. The party seeking such continuance must show in his affidavit and motion therefor that there are no other witnesses present by whom he can satisfactorily prove the same facts. It must affirmatively appear that the absent witness has been subpoenaed. See Ellis v. State, 25 Ga. App. 394 ( 103 S.E. 715); Wiggins v. State, 101 Ga. 501 ( 29 S.E. 26); Seagraves v. Powell Co., 136 Ga. 877 ( 72 S.E. 349); Clark v. Small, 179 Ga. 119 (2) ( 175 S.E. 475); Jones v. State, 125 Ga. 307 ( 54 S.E. 122); W. A. R. v. Bennett, 47 Ga. App. 629 ( 171 S.E. 187); Walker v. State, 118 Ga. 34 (4) ( 44 S.E. 850); Wells v. State, 43 Ga. App. 347 ( 158 S.E. 641). It is proper to refuse the motion for a continuance where the showing required by law has not been made. W. A. R. v. Bennett, supra. The motion must also show that the witness is expected at the next term. Runnals v. Aycock, 78 Ga. 553 (3) ( 3 S.E. 657).
It does not appear that the motion of the plaintiff for a continuance of the present case was in compliance with the above statute, and it was not error for the trial judge to deny his motion for such continuance and to direct that the case proceed to trial. It does not appear that Miss Sibley was subpoenaed or that there were no other witnesses present by whom he could prove the same facts, or that the witness would be available at the next term.
3. For the reason that the defendant Ferrier wrote off the recovery in his favor against the plaintiff for $250, based on the cross-bill interposed by the defendant, it does not appear that the court's charge, complained of in the special ground embraced in the first amendment to the motion for a new trial, that, "If you believe defendants sustained the damage by reason of the bringing of the action against them by the plaintiff, it is for you to say how much such damage they sustained." was harmful and this ground is not passed upon. That question is no longer in the case.
4. None of the other special grounds of the plaintiff's motion for new trial, added thereto by the second amendment to the motion shows error.
The plaintiff introduced evidence tending to show that he performed legal services for the defendant, which were both beneficial to him and with which he was satisfied; that, while he had been paid $350 on these services, a reasonable fee in the circumstances would amount to more than this sum; that the plaintiff had demanded such additional sum of the defendant Ferrier when Ferrier undertook in writing to discharge the plaintiff as attorney in the case, and that the defendant refused to pay the same. However, Ferrier introduced evidence to the contrary, which authorized the jury to find that the plaintiff was not entitled to any further attorney's fees in the matter. The contract of employment, which provided for the payment to the plaintiff of a reasonable attorney's fee for representing Ferrier in the proceedings involving his divorce and alimony claims against him, did not require as a matter of law a verdict in favor of the plaintiff for some amount as a reasonable attorney's fee in the premises. It follows that the verdict finding for the defendant and that the plaintiff was not entitled to recover any sum for a "reasonable attorney's fee" was authorized by the evidence and was not contrary to law. Necessarily, therefore, the verdict in favor of Ferguson was authorized and legal. The only judgment sought against him was to set aside the deed from Ferrier to him and subject the property to the judgment of the plaintiff for attorney's fees, which judgment for attorney's fees the plaintiff did not recover.
It follows that the court did not err in overruling the plaintiff's motion for a new trial as amended.
Judgment affirmed. Townsend and Carlisle, JJ., concur.