Wilkinson v. Parrott

By the Court, Sanderson, J.: Action to recover damages on account of personal injuries sustained by plaintiff’s daughter, a child about four years of age, from a bite by defendant’s dog.

When the case was called for trial in its regular place on the calendar, counsel for defendant moved the Court to postpone the trial for the space of three days on account of the temporary absence of the defendant. The motion was based upon the affidavit of the business associate of the defendant to the effect that the defendant had gone to the State of Nevada a few days previous to the motion on important private business, and that the affiant knew nothing about the f ¡cts of the case, but believed that it would be impossible to try it without the defendant’s presence, as the facts were altogether within his knowledge, and that he did not know when the defendant would return, but he expected him to do so within a few days.

The refusal of the Court to postpone the trial upon such a showing did not amount to an abuse of discretion. There is nothing in the- affidavit which entitled the defendant to an adjournment unless his voluntary absence unexplained is sufficient for that purpose. It is not even suggested that the defendant was ignorant of the fact that his case was set for trial on that day, or that the business upon which he absented himself was of such a character as to require his personal attention, or was so pressing as to admit of no delay. It may have been very important and yet have been attended to by some one else as well. It may have been very important, and of a character to require his personal attention, and yet have been delayed for a few days without prejudice. Moreover, there is nothing to show that his attorney was not in possession of all the facts, and as well prepared to try the case without him as with him. At all events, his attorney was careful [104]not to make an affidavit that he was not. And the affidavit, such as it was, was made by a party who neither knew nor could be reasonably expected to know anything on that head. While we are not prepared to say that the Court would have abused its discretion had it granted the motion, we have no hesitation in saying, in view of the meagre showing which was made, that it did not abuse its discretion in denying it.

It is next claimed that the verdict is contrary to the evidence on all the points which the plaintiff was bound to establish. In this connection it is claimed that it was necessary for the plaintiff to show : First—That the defendant was the owner of the dog. Second—That the dog was of vicious and mischievous propensities and accustomed to bite mankind. Third —That the defendant had knowledge of these characteristics; and, Fourth—That the defendant allowed the dog to run at large without being properly guarded and muzzled.