Whybark v. Bollinger

THE COURT.

This appeal is from an order dismissing the contest of appellant and from a final judgment against him. The question to he determined is as to the ruling of the court on appellant’s motion for a continuance. Appellant' had filed a contest, after probate, of the will of deceased, which came regularly on for trial in September, 1900, and after a trial occupying several weeks resulted in a disagreement of the jury.

Appellant was represented of record in the contest by three attorneys, W. W. Foote, J. J. Lermen, and Nicholas Bowden. The case was again regularly set for trial for September 17, 1901, and was then continued on motion of appellant’s attorneys to September 24, 1901. This continuance was granted

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upon a statement made by one of appellant’s attorneys that Mr. Foote was ill and unable to attend the trial. At this time the court informed counsel that if they were not ready to proceed with the case on September 24th they must obtain other counsel and be ready to proceed on that day. On September 24th appellant appeared by his attorneys, Bowden and Lermen, and again moved for a continuance upon affidavits showing that Mr. Foote was in poor health and unable to attend the trial; that Lermen had expected Mr. Foote to try the ease and had made his business engagements accordingly, and had other cases set in court for many succeeding weeks; that Bowden had been employed only to assist in selecting a jury, and was not sufficiently familiar with the facts of the case to proceed with the trial.

The court denied the application for a further continuance, and thereupon attorneys Bowden and Lermen withdrew from the case and refused to proceed. The court thereupon excused the jurors who were in attendance and ready for the trial of the ease, and continued it again to September 25, 1901, at which time Mr. Kerwin appeared for appellant and asked for a further continuance for three months, stating that he appeared solely for that purpose. No reason was given as to why appellant had not employed other counsel to appear for him generally. The court, however, again continued the case to October 1, 1901, at which time Mr. Kerwin again appeared for the sole purpose of moving for a further continuance, and in support of the motion read affidavits stating that the case was one of much importance, and that it would require an attorney from sixty to ninety days to familiarize himself with the law and.facts and to prepare for a trial. The court thereupon denied the motion for a further continuance, and contestant, declining to proceed, the court made an order dismissing the contest.