Pierce v. Merchants Heat & Light Co.

Harvey, J. Appellee prosecuted this action against appellant upon a promissory note. Issues were formed by seven paragraphs of answer and replies to said answers, and by two paragraphs of counterclaim, endeavoring to recover damages. Without going into detail as to the contents of said answers and replies, we feel justified in saying that such issues of fact were presented as entitled appellant to a trial thereof. The cause was set for trial, and appellant presented a petition requesting a continuance thereof. This verified petition recited that defendant’s only grandchild was lying at the point of death, and in the opinion of physicians could not live more than a few [573] days; that the defendant’s wife, the child’s grandmother, had recently undergone a very severe surgical operation, and had not recovered therefrom; that the grandchild’s mother had recently undergone a surgical operation, and continued ill from.the effects thereof; that defendant’s only daughter had recently suffered from a prolonged typhoid fever, and had not recovered therefrom; that the defendant was also sick, and left his sick-bed to negotiate a settlement of said matters, or to secure a continuance. The petition was supported by a number of certificates of physicians and surgeons attending the various members of appellant’s family so recited to be ill; and.thus it was demonstrated that not only was appellant himself ill, but was so mentally distressed by the illness of the other members of his family that he would have been of little or no assistance to his counsel in the trial of the complicated facts in issue; and in addition to said inability he was compelled to be absent as a witness, and it appears from the record that all the transactions and negotiations in reference to the matters alleged were conducted by appellant personally, and that he was the only person sufficiently acquainted therewith to testify in his behalf.. On the other hand, it may be fairly said, as shown by the record, that defendant was guilty of much procrastination and delay, of frequently causing additional- pleadings to be filed after the withdrawal of pleadings earlier filed, and, though such changing of the issues was done by leave of court and the pleadings filed were signed by counsel for defendant, yet it appears that defendant is a member of the bar and signed some of the papers filed in this cause as counsel for himself; and we believe it is not too much [574] to say that defendant personally insisted upon such changes and delays, with the result that the personnel of his retained counsel frequently changed, and counsel employed in Shelby county had been led by these aggravating circumstances to promise the court at the time of the granting of the former continuance at the request of defendant that they would not ask for another; and because of such aggravation, and because of said promise so made, said counsel withdrew appearance at the time the request for the continuance now in controversy was filed. We have no doubt all of these things operated upon the mind of the court, and probably caused the court to give less credit to the statements in defendant’s application for a continuance than they were otherwise entitled to. However, we cannot overlook the fact that at the particular time in question defendant was harassed by an unusual and extraordinary number.of specific cases of sickness and suffering in his family; and we must conclude, in view of the certificates of the physicians and surgeons, that he was unfit to assist his' counsel in presenting his defense in this case. 1. While such petition for a continuance is addressed to the sound discretion of the court, and a ruling denying the same will not be reversed unless said discretion can legally be said to have been abused, yet, under all the circumstances shown here, we are satisfied that a continuance should have been granted, and that to refuse the same was an abuse of discretion. Inasmuch as the pleadings and issues may be changed, we do not deem it necessary to consider more fully whether there was error in the ruling on the demurrers. [575] Because of error in refusing to grant a continuance, the judgment below is reversed, with instructions to grant appellant s new trial.