McCall v. Bilty

Owen, J. Appellant contends that the judgment should be reversed because the circuit court erred in denying her application for a continuance of the case over the term. The application for a continuance, by reason of the absence of a material witness, is addressed to the sound discretion of the trial court. Schamper v. Ullrich, 131 Wis. 524, 111 N. W. 691; Miller v. State, 139 Wis. 57, 119 N. W. 850. The judgment cannot be reversed, therefore, unless the trial court abused its discretion in refusing to grant the application. The application was properly denied for the following reasons: 1. There was no showing of diligence to procure the testimony of Mr. Devos. The case was on the calendar at the January and April terms of the circuit court for the year 1917. Mr. Devos was one of the' attorneys for the proponent. He entered the military service in May, 1917, from which time until August 15, 1917, he was at Fort Sheridan. During this period he was in Milwaukee frequently. No effort was made to take his deposition 'for use upon the trial, but, knowing that the cause was on the calendar and in due course would be reached for trial, the witness was permitted to leave Fort Sheridan and go to France without the least effort on the''part of proponent or her attorneys to secure his deposition for use upon the trial. [23] 2. Mr. Devos testified fully upon the trial of the matter in the county court. A perusal of the testimony there given leaves the impression that he testified fully concerning the competency of the testator and as to all circumstances attending the execution of the will. His testimony given at that trial was admissible in evidence upon the trial in the circuit court. Sec. 4141a, Stats. In addition to the authority of that section, the contestants offered to stipulate that his evidence given in county court might be read in evidence upon the trial in the circuit court. 3. At the time of the application for continuance the cause had already been pending, two years in the circuit court. The showing made on the application for the continuance did not indicate when the absent witness would return from France or when his testimony could be procured. The matter having been pending for so long a time should not have been continued by the circuit court except for very cogent reasons and a persuasive showing that justice would miscarry unless the continuance be granted. This did not appear. In fact, no statement was made as to what evidence Mr. Devos was expected to give that was not given by him upon the hearing in county court, in which respect Circuit Court Rule XIX was not complied with. 4. Circuit Court Rule XIX requires an application for continuance to be based upon an affidavit by the party or some person who knows the facts, setting forth specifically the facts upon which the motion is founded. No such affidavit was filed in this case. Upon the hearing of the motion one of the attorneys for the proponent was sworn in open court. The testimony given by him appears in the record over the certificate of the court reporter. It is not even signed by him. We know of no rule or statute constituting' testimony, given upon a motion of this kind, a part of the record upon the mere certificate of the court reporter. A doubt was expressed by this court in Sweet v. Modern Woodmen, 169 Wis. 462, 172 N. W. 143, as to-the [24] propriety of receiving oral testimony upon the hearing of an ordinary motion, and one of the objections to such procedure is that there seems to be no way provided by which the testimony so given may be made a part of the record so that it can be reviewed upon appeal. However, we again reserve the question, preferring to withhold a definite decision thereof until it shall be necessarily involved and we have had the benefit of full argument thereon. Treating the record as properly before us, we think that the trial court rightly disposed of the motion for continuance upon its merits. We are asked to order the costs and attorney’s fees of the proponent upon this appeal to be paid out of the estate. “The established rule is, where the contestant of a will has acted in good faith in taking an appeal to this court, and the questions of law or fact involved are worthy of consideration, to order the costs taxed against such contestant paid out of the estate.” Jones v. Roberts, 96 Wis. 427, 433, 70 N. W. 685, 71 N. W. 883; Davis v. Davis, 132 Wis. 54, 111 N. W. 503, 1129; Will of Bierke, 132 Wis. 165, 111 N. W. 1128. The same discretion is vested in this court with reference to attorney’s fees by sec. 4041 b, Stats. We do not think the discretion should be exercised, however, where the judgment or order appealed from was so clearly right as in this case. By 'the Court. — Judgment affirmed.