Light v. Richardson

HAYNES, C. The defendant appeals from a judgment rendered against him, and from an order denying a new trial. The facts are presented in several bills of exceptions.

The cause was set for March 3, 1892, in the superior court, and was on the calendar for trial. The defendant’s attorneys were Messrs. Willis & Appel, and on that day Mr. Willis was absent from the county on business, and Mr. Appel was unable to be present on account of sickness. The defendant was present with his witnesses, and ready for trial but for the absence of his attorney. Another cause was then on trial, [746]and, in answer to an inquiry made by plaintiff’s attorney, the court stated “that the case would not be reached, and, if reached, it would have to be continued on account of the sickness of Mr. Appel.” The defendant and his witnesses soon after left the courtroom, and, owing to the illness of one of his attorneys and the absence of the other, received no instructions in regard to their future attendance. On the morning of March 4th, Mr. Appel being sick still, Mr. Willis moved the court for a continuance of the cause upon his own affidavit. The affidavit, in addition to the facts above mentioned, alleged that the case had been in Mr. Appel’s charge; that it was understood and agreed between the firm of Willis & Appel and the defendant that Mr. Appel should try the case; that Mr. Appel had prepared it, and in consequence he (Mr. Willis) had given only a casual attention to it, either as to the' law or the facts; that he had no opportunity of communicating with the defendant or his witnesses; that defendant was not notified to be in court on that day, and that he did not know where he was. The continuance was denied, and defendant excepted.

Without deciding the question whether the absence of Mr. Appel, who had charge of the case, and who, as appeared from the affidavit above mentioned, by agreement with the client was to try the case, would have entitled the defendant to a continuance, we think the absence of the defendant and his witnesses under the circumstances was excusable, and that the continuance should have been granted. The defendant was informed by the statement of the court that his attorney upon whom he relied was sick; that if the case should be reached that it would have to be continued for that reason; and, in the absence of the other member of the firm, we do not think it strange that he inferred that it would not be tried until Mr. Appel should recover from his sickness, and that he would be notified by his counsel of the time of trial. But, on the contrary, his presence with his witnesses at the time fixed for trial was sufficient evidence that his absence on the next day was attributable to some other cause; and that cause, we think, should have been attributed to the defendant’s mistake of what was implied by the statement of the court in reference to a continuance of the case. It is clearly the intention of the code, while protecting the court from