267 P. 792 | Colo. | 1928
THE only question presented in this case is whether the county court committed reversible error in refusing to grant the defendant's application for a continuance.
Bell, the plaintiff below, recovered a judgment for $50 before a justice of the peace. On March 26, 1926, the case was appealed to the county court by Benster, the defendant below. On April 30, 1927, upon due notice, the case was set for trial to a jury on Tuesday, September 27, 1927, at 10 o'clock a. m. On the Thursday or Friday next preceding the day of trial, Benster, concluding not to have his former attorney try the case in the county court, employed his present attorney. On the day set for the trial, the defendant's attorney applied orally to Judge Luxford to have the case "go to the bottom of the docket." The application was denied; whereupon the attorney said, "I will withdraw my appearance, then * * *"; upon which the judge remarked, "All right; you may do that. This case will be tried before Judge Dunn * * *." Judge Dunn had been called into assist Judge Luxford in disposing of a congested docket. The parties and the attorneys appeared before Judge Dunn, and the defendant's attorneys requested a continuance for a week, or at least for three days. He was permitted to make an oral statement on oath, in lieu of filing an affidavit. The statement was to the effect that he was employed on the next preceding Thursday or Friday; that the defendant had supposed that the case had been *589 dropped, as nothing had been done in regard to it since the trial before the justice of the peace; that the defendant had been informed by his former attorney that the case was set for the 27th; that his present attorney has been engaged in other business which prevented him from making a proper preparation to try the case; that he has been unable to interview a single witness; that the defendant is not here, having been advised that the case could undoubtedly be continued for a day or two until preparation was made; that it is absolutely impossible to get in touch with the defendant this morning; that the attorney could not reach the witnesses, for he does not know who they are; that neither the defendant nor his present attorney received any notice of the setting of the case for trial, such notice having been given to Mr. K., who represented the defendant at the trial before the justice of the peace; that in the attorney's opinion, the defendant has a meritorious defense; and that the attorney for the plaintiff has consented to a continuance for a short time to give the defendant and his attorney opportunity for preparation. The court denied the application for a continuance; whereupon the defendant's attorney withdrew from the case, evidence was introduced by the plaintiff, and the jury found a verdict for the plaintiff in the sum of $50. A motion for a new trial was filed, argued and denied, and judgment was entered.
The allowance or denial of an application for a continuance is a matter of discretion. Only in case of a manifest abuse of that discretion will the action of the trial court be reversed. Mountz v. Apt,
Handling a congested docket is no easy matter. In the conduct of its business, a court owes a duty, not to one litigant alone, but to all litigants, and to the public as well. The trial judge was handling a difficult situation; and there is nothing in the record to justify an inference that, in denying the defendant's application, he had any purpose other than the efficient administration of the business of the court. There is a presumption of regularity in the proceedings in the trial court. UnionBrewing Co. v. Cooper,
The judgment is affirmed.
MR. CHIEF JUSTICE DENISON, MR. JUSTICE ADAMS and MR. JUSTICE CAMPBELL concur. *592