Bank of Am. Nat'l Tr. & Sav. Ass'n v. Harriscolor Films, Inc.

SEAWELL, J.

This is an appeal by the defendants from a judgment foreclosing a mortgage on real property.

It is first urged that the trial court erred in denying defendants’ motion for a continuance of the trial. This motion was supported by an affidavit of defendants’ counsel to the effect that the principal office of the defendant corporation was in the city of Newark, New Jersey, and that the president of the corporation, who alone was asserted to be familiar with the facts involved in this litigation and whose presence was averred to be essential to a proper defense of the action, had left the state upon the advice of counsel that the cause would not be reached for trial until approximately July, 1932.

Inspection of the record discloses that the complaint was filed July. 16, 1931. The corporation defendant filed its original answer on August 27, 1931, and its amended answer on September 28, 1931. The individual defendants, who were joined merely for the purpose of foreclosing any interest they might have in the mortgaged property and not as debtors on the principal obligation, which was purely a corporate debt, filed their answer on February 10, 1932. Thereafter and on March 5, 1932, counsel for the plaintiffs filed an affidavit and notice of motion for “short cause setting’’. The motion to set was made on March 11, 1932, at which time the cause was set down for trial on April 22, 1932. On April 8, 1932, two weeks prior to the time set for trial, counsel for the defendants filed the affidavit above referred to requesting a continuance until July or August, 1932.

A motion for continuance is, of course, addressed to the sound discretion of the trial court and, in the absence of a clear showing of abuse in the exercise thereof, ah appellate court will not disturb the ruling thereon. We find no abuse of discretion in the present case. It was not unreasonable

[385]

to require the defendants to be ready for trial approximately two and one-half months after the filing of the last answer and the bringing of the cause to issue. Moreover, the affidavit filed in support of the motion merely refers to the absence of the corporate officers and makes no attempt to aver or establish physical or financial inability to be present at the trial.