Burton v. Snow

Ostrander, C. J. (after stating the facts). Whether there was an abuse of judicial discretion is the only question presented. Such an abuse must be made out by the one who asserts it. The history of the litigation, its purpose and effect, are to be considered, as well as the particular facts attending the refusal of the court to grant a further continuance. The effect of the action of the court upon the party complaining is also to be considered. The effect in this case was to relieve defendant Snow, administrator, from an injunction restraining him from collecting from the W. J. Burton Company a dividend upon certain stock, for which dividend a judgment was recovered in November, 1907. To determine who owns the stock, complainant was given leave to file a new bill. The refusal of a further continuance was warranted because there was no evidence of preparation or of purpose to bring the cause to a hearing. The pleadings indicate that the matters involved are not complicated. The cause had been pending for two years, had been repeatedly adjourned by complainant, and had been set down for a day certain “with the distinct understanding that no further adjournment would be granted.” That one of the solicitors for complainant had withdrawn from the case was known to the other solicitor on April 12th. No effort was made thereafter to prepare for the hearing, and the court may well have found that failure to make the effort was not excused by the general statement that it was then too late to employ other counsel or for the so [535] licitor of record to prepare for hearing. Complainant was informed on April 14th that Mr. Robinson had withdrawn from the case. He does not say that he did not know it at an earlier day, or that he is not, directly or indirectly, responsible for such withdrawal. We find no abuse of discretion made out, and therefore affirm the order appealed from, with costs to defendant Snow. Bird, Brooke, Blair, and Stone, JJ., concurred.