State v. Thomas, 189 So. 3d 94

In Jan. 2010 Alabama filed a forfeiture action seeking $3,600 seized from Antwuan Thomas; a default judgment was entered then set aside after Thomas claimed the money.
The case was repeatedly set for trial on multiple occasions between 2011 and 2015; multiple calendar entries show continuances or settings, but many hearings never occurred and the record does not explain long delays.
On Feb. 19, 2015 both parties appeared; the State orally requested a continuance because its key witness, Officer John Busby, had the flu. The trial court offered a one-day continuance; the State objected and declined the offer.
The trial court dismissed the State’s forfeiture action under Rule 41(b) for want of prosecution and ordered return of the seized $3,600 to Thomas. Costs were waived.
The State moved to set aside the dismissal arguing the trial court abused its discretion by denying the continuance; the trial court denied the motion and the State appealed.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Respondent/Trial Court)	Held
Whether the trial court abused its discretion by denying the State’s oral continuance request for absence of a witness	Busby was a necessary witness who fell ill; the continuance was the State’s first and not sought for delay	Trial court offered one-day continuance; court was within discretion to deny longer continuance given the circumstances	Denial of continuance was not an abuse of discretion; dismissal was appropriate
Whether appellate review is impeded by lack of trial transcript showing what was argued to the trial court	State did not include a transcript of the oral motion but argued facts in its postjudgment motion	Trial record lacks transcript of oral argument; appellate court must presume any showing was insufficient	Without a transcript showing the Perdue factors were proved, the appellate court will not reverse; burden on appellant to show evidentiary support

Perdue v. Mitchell, 373 So.2d 650 (Ala. 1979) (sets multi-factor test to justify continuance for absent witness)
Ex parte Driver, 258 Ala. 233 (Ala. 1952) (describes required showing for continuance for absent witness)
Scullin v. Cameron, 518 So.2d 695 (Ala. 1987) (upheld dismissal under Rule 41(b) after party refused to proceed when continuance denied)
Johnson Publishing Co. v. Davis, 271 Ala. 474 (Ala. 1960) (continuances not favored; denial reviewed for abuse of discretion)
Douglass v. Allen, 574 So.2d 39 (Ala. Civ. App. 1990) (appellate court may presume trial showing was inadequate when transcript is absent)