KING v. McWHORTER

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Docket Number

No. 31870.

Attorney(S)

Leftwich Tubb, of Aberdeen, for appellant. The trial court erred in overruling appellant's motion for a continuance. The learned trial court did abuse its discretion in overruling the motion for a continuance, and as a result thereof appellant was denied a substantial right. The action of the court was harmful to this appellant. We might say at this point that the motion for a continuance and the affidavits in support thereof are in the form provided by the statute and the statutory procedure has been pursued. Section 576, Code of 1930. The facts, as set up in the affidavits which support the motion for a continuance, are not controverted. We find the books full of cases where continuances were had because of the sickness of witnesses or the sickness of parties. Caldwell v. State, 85 Miss. 383, 37 So. 816; Scott v. State, 80 Miss. 199, 31 So. 710; Watson v. State, 81 Miss. 700, 33 So. 491. We also call the court's attention to the following cases presenting similar facts, and in which this court has held the continuance should have been granted. Watts v. State, 90 Miss. 757, 44 So. 36; Vollm v. State, 96 Miss. 651, 51 So. 275; Corgin v. State, 99 Miss. 486, 55 So. 43; Haggett v. State, 99 Miss. 844, 56 So. 172; Johnson v. State, 108 Miss. 709, 67 So. 177; Walker v. State, 129 Miss. 449, 92 So. 480. The court will observe that the continuance was asked on two grounds, viz.: the illness of the appellant and the inability of her counsel to be present at the trial. The appellant was entitled to a trial by jury and she was under no duty or obligation to consent to or agree to a vacation hearing before the judge in order to get a continuance of the same. Stovall Stovall, of Okolona, for appellee. The only issue before the court is whether or not the trial judge in exercising the discretion placed in him by statute abused that discretion when he overruled appellant's motion for a continuance. It is the appellee's position that the learned trial judge reached the only conclusion that the law and the facts of the case justified, and that there was no abuse of discretion that would authorize a reversal of the case. Section 576, Code of 1930. We submit that the mere assertion in appellant's affidavit for a continuance made by one of her counsel that "she is a material witness in her own behalf" does not satisfy the demands of the statute that the affidavit shall set forth the facts which are expected to be proved by the absent witness. Even assuming for the purpose of the argument that the ex parte affidavits of the doctors are sufficient to account for the absence of the party making the affidavit for a continuance and thereby permitting the court to consider same as provided by the statute, the affidavit itself for a continuance did not comply in substance with the requirement of the statute to authorize the court to grant same. The appellee, however, did not rest on the insufficiency of appellant's showing for a continuance, but put on affirmative proof as to the condition of health of appellant between the time of the last continuance, April, 1934, and the then October, 1934, term of court to rebut the allegation that appellant's condition of health was such that her deposition could not have been taken. The cases of Scott v. State, 80 Miss. 199, 31 So. 710, and Watson v. State, 81 Miss. 700, 33 So. 491, cited in appellant's brief on the question of judicial discretion in passing upon a motion for a continuance, are not in conflict with the decision of the learned trial judge, but, on the other hand, we submit, buttress the strength of the justice of that decision. Absence of a party to a case is no cause for a continuance when called for trial unless his presence is shown to be necessary for the proper presentation of his case. The certificate of a physician is not competent evidence of the illness of a party to the case on the trial of a motion for a continuance thereof because of his inability to be present at the trial. Coleman et al. v. Brown, 99 So. 465.

Judges

Anderson, J., delivered the opinion of the court.

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KING v. McWHORTER.

1. APPEAL AND ERROR.

Correspondence between attorneys and trial judge with reference to continuance which was refused had no place in record, since only pleadings, orders, instructions, judgment, and evidence and rulings thereon constitute record on appeal.

2. CONTINUANCE.

Where motion for continuance was supported only by certificates of physicians that party to suit was unable to attend court because of illness and affidavit of attorney stating necessity of party's presence to advise her attorneys but failing to state facts upon which alleged necessity was based and failing to set out what party's testimony would be as witness in her own behalf, continuance held properly denied (Code 1930, section 576).

3. CONTINUANCE.

Absence of party is no cause for continuance when case is reached for trial, unless his presence is necessary for proper presentation of case, and this must be shown, not by way of conclusion, but by evidence justifying such conclusion (Code 1930, section 576).

4. CONTINUANCE.

To justify continuance upon ground of absence of party because of illness, application must set forth with reasonable clearness material facts party would testify to if present (Code 1930, section 576).

Anderson, J., delivered the opinion of the court.

Appellee brought this action in the circuit court of Chickasaw county against appellant to recover the sum of five hundred sixty-five dollars, with interest, alleged to be due and owing on open account for loaned money. There was a trial and judgment in the amount sued for. From that judgment appellant prosecutes this appeal.

The only question in the case is whether the court erred in refusing to continue the cause on appellant's application. The action was brought to the October term, 1933, of the court, and was triable at that term, but was continued on the application of appellant. At the April term, 1934, it was again continued on the application of appellant. At the October term, 1934, an application was again made for a continuance upon the ground of appellant's illness and inability therefrom to attend court. The application was overruled and the trial had, resulting as above stated. After the trial a good deal of correspondence took place between the attorneys in the case and the trial judge, principally with reference to the continuance. This correspondence was embodied in the record in the case. It had no place there; only the pleadings, orders, instructions, judgment, and the evidence and rulings of the court thereon constitute the record on appeal.

The motion for a continuance was supported alone by an affidavit of one of appellant's attorneys and certificates of two physicians that she was unable to attend court on account of illness. The affidavit, although it stated that appellant's presence was necessary to advise her attorneys in the progress of the trial, failed to state the facts upon which the alleged necessity was based, and, furthermore, failed to set out either particularly or in substance what appellant's testimony would be as a witness in her own behalf. The absence of a party is no cause for a continuance when the case is reached for trial, unless his presence be necessary for the proper presentation of the case, and this must be shown to the court, not by way of conclusion, but by evidence justifying such a conclusion. Coleman v. Bowman, 135 Miss. 137, 99 So. 465. Neither in the evidence nor otherwise was it shown that appellant would be a material witness in her own behalf. To justify a continuance upon that ground it was necessary that the application set forth with reasonable clearness the material facts appellant would testify to if present. Ware v. State, 133 Miss. 837, 98 So. 229.

Section 576, Code 1930, provides, among other things, that the affidavit to support the application for a continuance should contain the facts expected to be proven by the absent witness that the court may judge of the materiality of such facts, and that the continuance is not sought for delay only, but that justice may be done, and that a denial of a continuance should not be ground for a reversal unless the Supreme Court should be satisfied that injustice resulted therefrom.

We are unable to see from this record that any injustice has resulted to appellant on account of the refusal to continue.

Affirmed.

KING v. McWHORTER.

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