Everts v. Will S. Fawcett Co.

BARNARD, P. J.

This is a motion to dismiss the appeal or affirm the judgment on the grounds that the appeal was

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taken for delay only and that the questions involved are so unsubstantial as not to need further argument.

It appears from the opening brief that the judgment entered amounted to more than $200,000; that the appellant was forced to abandon a counterclaim in a much larger amount because it was unable to secure the evidence of certain witnesses at the time set for trial; and that this appeal is based upon the contention that the court abused its discretion in denying a motion for a continuance. Reasons and grounds for a continuance are set forth which, on their face, appear to possess considerable merit. In fact, the trial court, after setting the trial for May 22, 1933, vacated this order on motion of the appellant and reset the case for trial on October 9, 1933, although it later vacated that order and again set the case for May 22, 1933. Subsequently, the court denied two motions for a continuance based, in part, upon the alleged illness and inability of the principal witness and real party in interest to attend the trial. This refusal of a continuance is the basis for this appeal.

It not only appears that an examination of the whole record will be necessary, but the question presented appears to be sufficiently substantial to deserve consideration and one in the decision of which the court should have the benefit of the respondent’s assistance.

The motion is denied.

Marks, J., and Jennings, J., concurred.