Costley v. Chapman

McCLENDON, C. J. The only question presented in this appeal, is whether the trial court committed reversible error in overruling a second motion for continuance or postponement which was predicated upon the absence of appellant, who was in attendance upon the trial of another case in which he was a defendant. We will state only so much of the record as bears materially upon this question. The suit was by the state commissioner of banking and insurance, against j. Lee Costley, to recover from the latter the sum of $5,900, the amount of a 100 per -cent, assessment as a stockholder of the Citizens’ Guaranty State Bank of Manor, which had become insolvent and whose affairs were being administered by the commissioner under the state banking laws. The suit was brought to the December term, 1922, of the court, and was continued to the March term, 1923, upon application of Costley, upon representation by his counsel “that they had been unable to fully consult with their client, the defendant herein, but would agree to be ready for trial upon any date fixed by the court at its March term, 1923.” The case was placed upon the jury docket, which was called for settings on March 19, 1923, and the case was then set for trial Monday, March 26, 1923, and defendant, who lived at Dallas, was so notified on that day by his counsel. On March 22, 1923, defendant was advised that a case pending in the federal court at Port Worth, in which he was a party, would be called for trial March 26, 1923, and he so wrote his counsel in this case. When the case was called for trial on March 26th, defendant’s counsel asked for a continuance or postponement on the ground of defendant’s absence and also because- one of defendant’s attorneys had to attend another trial in San Marcos on that day and the day following. In compliance with this request, the court postponed the ease to the following Thursday, March 29th. When the ease was called on that date, defendant was still in attendance upon the federal court, and his counsel presented a formal motion for continuance or postponement, which the court overruled. The case then proceeded to trial over objection of defendant’s counsel. The parties sought to be impleaded by defendant in his cross-action were dismissed from the case because they had not been served with process upon the cross-action, and defendant had made no effort to serve them. Plaintiff’s general demurrer to defendant’s answer was sustained, except as to ^ general denial. A jury was selected, the pleadings were read, plaintiff offered his evidence, and judgment was rendered in his favor for the-full amount sued for upon a directed verdict. Defendant’s counsel were present but took no part in these proceedings, except upon direction of the court, and then only under protest. On April 20, 1923, defendant filed an amended motion for new trial, which was overruled on May 19, 1923. Appellant only complains of the action of the trial court in overruling the motion to continue or postpone and in ordering the case to trial in his absence. We have reached the conclusion that in these respects the record does not present reversible error. “It is unquestionably an important privilege of a party to be present at the trial of Ms cause, which should not be denied on a proper application made, unless for weighty feasons.” 13 C. J. 138. [1] But whether under the facts of a given ease a continuance or postponement should be granted, in order that the absent party may avail himself of this privilege^ is usually a matter which rests in the sound discretion of the trial,court — a discretion which will not be reviewed' on appeal unless it clearly appears that it has been abused. Mayer v. Duke, 72 Tex. 445, 10 S. W. 565; [545] Oil Co. v. Watkins (Tex. Civ. App.) 189 S. W. 1083; 13 C. J. 138, 139. In Mayer v. Duke the Supreme Court say: “A party to a suit, whose testimony is material to his cause, may prefer to give his testimony in person, and may therefore decline to have his deposition taken in his own behalf. But if he do so he takes the risk of losing the benefit of his testimony, in the event he should fail from wrvy oawse [emphasis ours] to attend upon the trial. Having elected to take his chance of attendance upon the trial, his absence should not, in an ordinary case, be permitted to result to the prejudice of the opposite party. It should neither be a ground for a continuance, nor for the granting of a new trial.” [2] Before the action of the trial court in refusing to continue or order a new trial on the ground of a party’s absence will be disturbed, two things must be shown affirmatively by the complaining party: (1) That he had a “reasonable and sufficient excuse” for not being present (13 C. J. 139); and (2) that his absence resulted to his prejudice. See Grain Co. v Winniford (Tex. Com. App.) 219 S. W 195, and authorities there cited. [3] There are not many cases upon the subject, but the general rule seems to be that— “Attendance on another court is not a ground for continuance which the courts are bound to recognize as sufficient.” 13 C. J. 143; Gunn v. Gunn, 95 Ga. 439, 22 S. E. 552. [4] But even where a contrary Yale is in force it is held that the party is bound by the first notice of trial, and the court in which that was given will not grant a continuance because the requirement of the party’s presence in that court would be reasonable ground for continuance in the other court. Neven v. Neven, 38 Nev. 541, 148 Pac. 354, Ann. Cas. 1918B, 1083; Finan v. Fillmore, 1 Mich. N. P. 172. The record does not show when the suit in the federal court was filed; but it does appear that an amended original petition was filed and original citation issued to appellant on February 3, 1923. The citation called for the appearance of appellant on March 12th. The only other light thrown on the subject is contained in a letter from appellant to his attorneys, dated March 22, 1923, in which he states that he is informed by his attorney that the case was the first on the. docket on Monday, March 26th, “and there is no question about the case going to trial, and he tells me that it will take four or five days or longer to try the case.” What, if any, efforts appellant made to have the case postponed or continued in order that h.e might be at the trial of the case at bar are not disclosed by the record; and therefore a reasonable and sufficient excuse for his absence is not affirmatively shown. Nor do we think the record affirmatively shows that appellant’s absence operated to his prejudice. The only allegations of prejudice made to the trial court were: That he was deprived of the right to aid in selecting the jury; that he could and would have advised his counsel of facts which would have enabled them to amend his pleadings when the demurrer was sustained to his answer; that he had a meritorious defense which he could have presented to the jury; and that had he been present “he would have proved the allegations in his cross-action.” [5] That he was deprived of the right to aid in selecting the jury had no bearing on the case, since the only function the jury performed was to render a verdict at the court’s direction. It is not contended that directing a verdict for appellee constituted error. [6] In order to show prejudice in being deprived of the right to inform his counsel of facts upon which to base an amended pleading, at least the substance of such facts should be made known to the court, in order that it might be determined whether, if true, they in law constituted any defense, or would otherwise have bearing upon appellant’s rights. This was not done. [7] The same is true as regards the allegation of a meritorious defense. Merely alleging generally the existence of a meritorious defense is not enough. [8] The absence of appellant could not have any bearing upon his cross-action. The judgment shows that it was dismissed because none of the parties sought to be impleaded had been served and appellant had exercised no diligence in this regard. He could not possibly have prosecuted the cross-action, without obtaining a continuance for service — a situation of which he was charged with legal knowledge, and upon which his absence or presence had no bearing. The trial court’s judgment is affirmed. Affirmed. Footnotes [1] ®s»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [2] <§5»For other cases see same topic and K.EY7M UMBER in all Key-Numbered Digests and Indexes