Slaughter v. Zimman

McCOMB, J.

From a judgment in favor of plaintiffs on their complaint to recover the value of professional services rendered by their assignors to defendant minors and against defendants on their cross-complaint for damages resulting from alleged malpractice by plaintiffs, defendants appeal. There is also a purported appeal from the order denying defendants’ motion for a new trial.

Facts:

In response to plaintiffs’ complaint defendants filed a cross-complaint on behalf of the minors which was prepared by Attorney Theodore Epstein. At the time of the trial on May 17, 1950, defendant Louis Zimman appearing in propria persona made a motion for a continuance which was denied. On the hearing of this motion it appeared that on May 8,1950, Theodore Epstein told Louis Zimman, the guardian

ad litem

for the minors, that he could not and would not represent him further and told him to get another lawyer. On May 8, the substitution of attorneys was signed and it was filed on May 9, 1950. By this document Louis Zimman was substituted in propria persona in place of Attorney Epstein. At the hearing on the motion for a continuance the trial judge called to the attention of Louis Zimman this substitution of attorneys, and Mr. Zimman stated that he had been told a week previous to trial that he should have an attorney in the action.

Questions:

First:

Did the trial court err in denying defendants’ motion for a continuance?

No.

It is settled that an application for a continuance is addressed to the sound discretion of the trial judge whose ruling will not be reviewed except for the most cogent reasons. The trial court was apprised of all the circumstances of the case and the previous proceedings and was therefore better able to decide upon the propriety of granting the application than an appellate court. An abuse of discretion must

[625]

be shown to justify a reversal of the judgment because of a ruling denying a continuance.

(Guardianship of Lovern,