Flynn v. Fink

HOUSER, J.

The matter before the court on this appeal from the judgment arises out of the refusal by the judge of the lower court to postpone the date of trial. The facts are as follows: On July 7, 1921, the action was set for trial on the first day of December of the same year. On November 26, 1921, which would be five days before the date for the trial of this case, the firm of Smith & Breslin was substituted as attorneys for defendants, but the notice of substitution was not served on the attorneys for plaintiffs until the thirtieth day of November. On the day when the case was set for trial, to wit, December 1st, the attorneys representing defendants moved for a continuance without first having given the attorneys for plaintiffs any notice of their intention so to do. When the case was called for trial at 10 o’clock A. M., the reason given to the court for the continuance was that the attorneys representing defendants were then engaged in the trial of an action in another department of the superior court; that the case in which they were then engaged had been on trial for a considerable time

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and would in all probability last a period of a week or ten days longer. On being interrogated by the court, Mr. Smith, of the firm of Smith & Breslin, stated that his firm was engaged in the case on trial in the other department at the time they were substituted as attorneys for defendants and that they knew at the time of the substitution that they would not be able to conclude the case that was then on trial in the other department by the date set for the case in which a continuance was sought. The court temporarily denied the motion, but continued the case until 2 o’clock P. M. on the same day, at which time attorneys for defendants again appeared in court and filed a formal motion and affidavit for continuance, which motion was denied by the court, and defendants and their counsel thereupon left the courtroom. Evidence was then introduced on behalf of plaintiffs, and judgment was ordered in their favor and against defendants in the sum prayed for in the complaint.

It cannot be said that one party to an action has any greater right than the other party thereto with reference to the time within which the cause is to be determined. The plaintiff, if he be entitled to a judgment as a matter of justice, is usually very anxious that a speedy trial be had; while in the same circumstances the defendant, knowing, or at least believing, that his case is desperate and that he is fighting in a matter that cannot but end disastrously as to himself, is just as desirous of postponing the inevitable. On the other hand, where the facts are in dispute or the law uncertain, and consequently an even chance of success exists as to either party, the defendant may wish for the end of the controversy equally with the plaintiff. But the plaintiff and the defendant are not the only interested parties. The court itself, representing as it does an arm of the government in its service of the public, has a right to demand that there be orderly, prompt, and effective disposition of litigation. If cases or proceedings of any sort be permitted to drag by reason of successive continuances, the calendars of the courts will become crowded and congested; lawyers, litigants, and witnesses will be inconvenienced by reason of the inability of the courts to hear cases on the day on which they may be set for trial, with the result that in meritorious instances cases actually ready for trial will not proceed and the various interested parties will be obliged to