Rossett v. Gardner

BrowN, President. This case, though" very imperfectly presented, yet shows satisfactorily that appellant had used due diligence to be prepared for trial, however wanting he may have been at a former term. That one of his counsel was unavoidably absent by reason of a recent and important change by the legislature in the time of holding the court, by which the counsel, by previous engagement, was required to be at another court at the same time. The appellant’s other counsel, though present on a proceeding day of the term, was, from some cause not explained in the record, absent when the cause was heard, and the appellant left without the aid of any of his counsel, had to prepare his affidavit for continuance himself; and its imperfections furnish ample evidence of his need of counsel in the preparation and management of his cause. I think the court ought to have continued the cause under the circumstances. Without, therefore, expressing any opinion on the merits of the case, I am of opinion to reverse the decree and remand the cause with costs to the appellant. Berkshire, J. From the appellant’s affidavit, filed at the 'ime of the final hearing of the cause, upon which he founded lis motion for a continuance upon the ground of the absence of his counsel who were conducting the suit, (though the affidavit is not free from ambiguity and was evidently .written by the appellant himself), I think it sufficiently appears that neither of said counsel were present at the time such application for the continuance was made, though it does ap [534] pear that one of them, B. H. Smith, Esq., was present and in attendance upon the court on a previous day of the same term. And as it does not appear that the appellant was wanting in proper diligence in reference to the procurement of counsel, or in any respect responsible for their absence, I think he was entitled to the benefit of their services, or at least one of them, and that the court erred in proceeding to a hearing of the cause in the absence of both of them. I do not deem it necessary to express any opinion on the merits of the final decree complained of, as I think the case should be remanded for further proceedings. In my opinion the-decree should be reversed, with costs to the appellant here, and the cause remanded to the circuit court for further proceeding.