Daudel v. Wolf

Dec 3, 1912

Reporters:: , ,
Before:: McCoy

McCOY, P. J.

It appears from the record in this case that during the trial, and when a witness for plaintiff was being cross-examined by counsel for defendant, defendant’s counsel asked the witness the question, “During the last seven years, how long have you been away from home?” and to which question the witness answered, “About a year and a half.” Counsel for defendant repeated the question, and the same answer was given. Counsel *417for defendant again repeated the same question-, which was objected to by counsel for plaintiff on the grounds ¡that it had already been answered and that it was immaterial to the issues in the case. The court sustained the objection, and in doing so- the court stated: “There is no use to- ask the question again, as there is only one point in issue, and that is the identity of the mare.” Thereupon counsel for -defendant again asked the same question of the witness, to which plaintiff’s attorney again made the same objection. The court then made the statement to defendant’s counsel, “I will tolerate no justice court practice in this court,” to which statement of the court defendant’s counsel excepted and asked that the remarks be incorporated in the record. The court then stated; “I will look after the record, but I will have to insist that you live up to the rules and practice of this court, or yqu cannot proceed in this trial.” Counsel for defendant again excepted to the remarks of the court. The court then requested counsel for defendant to sit down, which he refused to do. While conducting the cross-examination of the witness, counsel for defendant had been sitting. The court, upon the refusal of defendant’s counsel to be -seated, then requested the sheriff to remove defendant’s counsel from the courtroom; at the same time the court stating to defendant’s counsel that he ■could not appear in court until he expressed a willingness to conform to the rules of the court. The court then notified defendant that his attorney could not appear in the court until he had’ expressed a willingness to live up to the rules of the court, and that defendant could have ample time to procure new counsel and proceed with the trial, but defendant stated that he refused to procure other counsel; thereupon the trial was resumed, the plaintiff’s evidence submitted, and the jury instructed, and a verdict rendered for plaintiff and judgment entered thereon.

[1] Defendant then moved for a new trial on the ground of “irregularity in the proceeding of the court, and the exercise of arbitrary discretion by whi-ch defendant was prevented from having a fair trial.” The motion for new trial was -overruled, and defendant excepted, and now‘on appeal urges such ruling of the court as error. We are of the opinion that the contention of defendant is not tenable. The manner of conduct and control of *418trials in relation to the decorum of the parties and counsel towards the court and each other, and in preserving the dignity of the court, are matters inherently within the discretion of the trial judge, who has a very wide latitude of discretion in this regard; and the action of a trial court in this regard will not constitute error unless it appears there has been a gross abuse of such discretion. It is necessary to the due exercise of the function of a judicial court that the judge should possess the power to preserve order while conducting judicial proceedings, to enforce obedience to the lawful orders and process of the court, and consequently to punish disobedience of the same. Thompson on Trials, § 124.

[2] For counsel to persistently, over and over again, propound the same question to a witness that has already been once or more times fairly answered is such misconduct -that tire trial court should reprimand, even without objection from opposing counsel. It is certainly much more flagrant misconduct after an objection has been made thereto and sustained by the court, and especially so when the court has clearly stated to counsel that the question should not again be repeated because it was immaterial. It was the- privilege of counsel for defendant to except to the ruling of the court when the court sustained the objection to the question; but, after the court had dearly passed upon the objection, it was .misconduct unbecoming an attorney to thereafter, in such manner, seek to override, trample down, circumvent, and avoid the ruling of the court. Under the circumstances of this case, we are clearly of -the opinion that the. trial court did not abuse its inherent discretion by causing the removal of defendant’s counsel from the courtroom until he should express a willingness to abide by the rulings of the court. The view that the trial court has a wide discretionary latitude in this regard seems to be sustained by the following authorities: Scott v. Dow, 162 Mich. 636, 127 N. W .712; Felt v. Cleghorn, 2 Colo. App. 4, 29 Pac. 813.

[3] Again, one who invites or brings error into a case cannot thereafter be heard to complain thereof.

[4] The motion for new trial in this action was based upon the affidavit of counsel for defendant annexed to and served with’ the notice of intention. At the time of the hearing of the motion *419for new trial, plaintiff was permitted, over the objection of defendant, to submit a counter affidavit showing what plaintiff claimed to be the circumstances which led up to and under which the court caused defendant’s counsel to be ejected from the courtroom. The counter affidavit was not served within io days after the service of the moving affidavit accompanying the notice of intention as provided by section 303, Code Civ. Proc. If defendant had desired time in which to rebut said counter affidavit, he should have moved for a continuance or postponement of the hearing for that purpose. The time for service of the counter affidavit is not jurisdictional, and it is within the discretion of the trial court to permit such affidavit after the expiration of the 10 days provided by statute, where no inconvenience or prejudice would be occasioned thereby to the moving party.

[5] Unless the moving party makes some showing at the time that he desires further time in which to file rebuttal affidavits, it will be presumed that the court properly overruled the objection to the counter affidavit, and that there would be no prejudice to the moving party caused thereby. It does not appear on what ground the court denied the motion for new trial. The presumption is that the ruling of the trial court appealed from was correct, and the burden rests on appellant to affirmatively show and point out error that would warrant a reversal.

[6] The affidavit accompanying the notice of intention, on which the motion for new trial was based, is insufficient in that it does not contain a statement of the surrounding facts and circumstances which led up to and under which the court made the remarks and took the action in ejecting said counsel from the courtroom. One who moves for, a new trial by reason ofi the alleged irregular action of the trial court, in regard to the manner of conducting a judicial trial, must show all the surrounding circumstances, if any, which caused such action on the part of the court, and it must affirmatively appear from such showing that •the action of the court was gross abuse of judicial discretion. The affidavit of defendant’s counsel presented on the motion for new trial was wholly insufficient in this regard. The mere statement that the trial court performed some act or made some remarks that might be regular or not according to the circumstances would -be presumed to be regular in the absence of surrounding *420circumstances affirmatively showing to the contrary. The matters ■and thing‘s which naturally would have rebutted or denied the counter affidavit, if any, should have been contained in the original affidavit on which the motion was based, and the counter affidavit made in opposition thereto, if the plaintiff wished to dispute or contest the showing so made.

Finding no error in the record, the judgment of the trial court is affirmed.