Tiffin v. Cummings
Before: Cooper
Synopsis
Vat.—Befusal of Continuances—Discretion.—Held, in view of all the facts in this case, that there was no abuse of discretion in refusing a motion for a continuance made on the day of trial without previous notice, for absence of attorneys for the defendant, and their inability to prepare for trial, without a sufficient showing of reasons, diligence, or good faith.
Id.—Facts to be Considered.—The trial court had the right to consider and act in view of the time that had expired since the commencement of the action, the kind of answer that had been filed, and the generalities contained in the affidavit for a continuance.
[613]
COOPER, C.
This action was brought to foreclose a chattel mortgage given to secure a promissory note made by defendants for the sum of two thousand dollars. Plaintiff had judgment, from which defendants prosecute this appeal, and make the sole point that the court abused its discretion in refusing to grant their motion for a continuance.
We have carefully examined the record and find no abuse of discretion in the order of the court denying the motion. The action was commenced September 12, 1902. Defendants appeared and filed a general demurrer to the complaint on October 9, 1902. Counsel did not appear to present the demurrer, and on November 10, 1902, the court made an order overruling it and allowing defendants ten days to answer.
On December 1, 1902, the defendants filed their answer. The complaint was verified, and the answer did not deny the execution of the promissory note and mortgage as alleged in the complaint. It attempted to deny the amount due, but its denial was in the following language: “Deny that nine months of interest, and no more, on said principal sum mentioned in said promissory note and said mortgage has been paid, and is indorsed on said promissory note; and deny that two thousand ($2000) dollars gold coin of the United States, the principal sum mentioned in said promissory note and mortgage, together with interest thereon, at the rate of two per cent per month from July 1, 1902, still remains due and unpaid from said defendants.” It denied, for want of information or belief, that plaintiff was the lawful owner or holder of said promissory note. It alleged affirmatively that the defendants, at the time of executing the said note and mortgage, were directors of a corporation known as “Great Northern Gold Mining Company,” and that in the execution of said note and mortgage they acted solely as the agents of the said corporation and for its use and benefit.
The case was set for trial and tried June 25, 1903. In support of the motion for a continuance the defendants’ attorneys filed an affidavit dated June 23, 1903, which stated that they did not know until informed by plaintiff’s attorneys June 10, 1903, that the case had been set down for the 25th of June; that both members of the firm were then and would be on the 25th engaged in the trial of the case of Neal
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