White v. Rurup

DORAN, J. This is an appeal from the judgment.

On the day of trial one of defendant’s attorneys “moved the court for permission to withdraw”; said motion which theretofore had been duly noticed, was denied. A motion for a continuance by defendant was also denied.

The sole issue on appeal is whether the denial by the court of the above-mentioned motions amounted to an abuse of discretion.

Appellant argues, “With the utmost deference and confidence—for it has been said by the highest tribunals, para[693]phrased by the oracles of Scripture, and sadly sung by the greatest of the poets—-we submit that hearing but one side is no trial; it is little more than the simulacrum of a trial, and justifiable only (a) by the indifference or contumacy of one of the litigants, or (b) by his action pro confesso.”

The record reveals that the action was filed September 20, 1946; the answer filed October 2, 1946. The ease was set for trial August 1, 1947. Ten months elapsed between the date the answer was filed and the trial date. Defendant was represented by Attorneys Sturzenacker and Isenberg. On the day of trial Attorney Sturzenacker’s motion to withdraw was grantéd. Attorney Isenberg' continued to represent defendant.

The action was for attorneys’ fees in connection with a divorce suit. Defendant’s husband was not a party to the within action, but appeared at the trial thereof at which time the following discussion occurred.

“Mr. Rurup: Pardon me, your Honor, I am not familiar with court procedure but I am the husband of the defendant. May I make a statement or two that might clarify some of this situation for Mr. Sullivan?

“The Court: What do you want to say, you are not a party here ?

“Mr. Rurup: No, but I would like to refresh his memory as to some of his statements.

“Mr. Rurup : I might add that I never answered the complaint that Mrs. Rurup filed. It was never answered for the simple reason that I knew there was undue influence being used on Mrs. Rurup from the outside.

“The Court: I am not going into that, sir, nor have you any position here to tell me. If you wanted to file an answer you could, or she could, and be here. He is not asking for that. He is asking for the preparation of this matter. Is there anything else?