Dennard v. Farmers & Merchants Bank

151 Ga. 445 | Ga. | 1921

George, J.

(After stating the foregoing facts.) In' the view we take of this case, a continuance or postponement of the hearing of the contempt case should have been granted. The motion for continuance or postponement was technically complete. So far as the merits of it are concerned, it appears without dispute that upon the filing of the original petition for injunction the defendants immediately employed Mr. Theo Titus, of the firm of Titus & Dekle, to represent them in all the proceedings that had been brought or that might be brought against them by the plaintiff bank. The contract was with Mr. Titus, and the defendants relied upon him to represent them in the litigation. Mr. Titus had in fact exclusive charge and control of the defense in the original ease, and represented them in said case before the Supreme Court. He likewise had exclusive charge and control of the defense in the former proceeding for contempt brought by the plaintiff bank against the defendants, and represented the defendants in that matter before the Supreme Court. All matters pertinent to the claims and contentions of the defendants were and are peculiarly in the knowledge of Mr. Titus. Mr. Dékle had general knowledge of the litigation, but not of the particular facts and circumstances of the case or of the defense urged by the defendants. Mr. Titus was employed long before his present illness; and while he had not been well since February, 1920, he did not leave his home until a day or two before the filing of the petition for contempt. His physician testified that Mr. Titus had gone to Highland, N. C., under his advice and direction, and that in his opinion he would be able to return and resume the practice of law on the 16th day of September, 1920. Mr. Titus was examined by his physician on the 16th day of June, and he was then advised that it would be necessary for him to take a rest of three months. He did not in fact leave Thomasville (his home) until July 7 or 8. He was expected to return and to be able to take up his practice of law on the 16th day of September, 1920, as stated above.- To the motion for continuance or postponement a counter-showing was made. None of the material facts stated above were controverted. It appears merely that the answer in the original ease and all pleadings filed by the defendants in the former proceeding for contempt were signed in the firm name; and that the present petition for contempt was in fact mailed to the judge on July 6, 1920, before it was known that Mr. Titus would leave for Highland, N. C., on July 8. It is also made to appear in the counter-showing that counsel for the plaintiff bank relied on the statement of Mr. Titus that the bond provided in the order of April 23, 1920, would be given by the defendants. Section 5718 of the Civil Code of 1910 provides: “The- illness or absence, from providential cause, of counsel where there is but one, or of the leading counsel where there are more than one, shall be a sufficient ground for continuance: Provided, the party making the application will swear that he can not go safely to trial without the services of such absent counsel, and that he expects his services a,t the next term, • and that said application is not made for delay only.” In Thomas v. State, 92 Ga. 1, 7 (18 S. E. 44), a majority of the judges were of the opinion that all motions for continuance, including such a motion based upon the ground of the absence of leading counsel for providential cause, were controlled by section 3531 (now section 5724) and were addressed to the sound legal discretion of the trial court. Mr. Justice Simmons, who delivered the opinion for the court, expressed the view that when a party makes a motion for continuance on account of the absence of his leading counsel and makes the proof required by the Code, the judge has no discretion in the matter. In Cooper v. Jones, 24 Ga. 473 (4), it was held: “Every counsel engaged in a cause ought to be prepared to conduct it, and the absence of counsel for any cause, when there is more counsel than one, ought to be seldom allowed .as a ground of continuance.” See also Blackwell v. Jennings, 128 Ga. 264 (57 S. E. 484). Nevertheless a party is entitled to the privilege and benefit of counsel of his own selection. This is an invaluable right. Without dispute it appears that Mr. Titus was the counsel selected by the defendants to make their defense in the main case as well as in all cases ancillary thereto. The firm, according to this proof, was employed solely because Mr. Titus was a member thereof, and the defendants relied on Mr. Titus, and he did in fact have exclusive charge and control of the litigation for-the defendants. It is true that Mr. Dekle was a member of his firm. His legal ability is not questioned. He was not, however, directly employed by the defendants; and while the defendants would not have the right to continue the case indefinitely because of the absence of their leading counsel, we can not leave out of view the fact that this was a matter triable before the court, without the intervention of a jury, in term time or vacation. It appeared that Mr. Titus was expected to return and to resume his duties as counsel on September 16. While the case was actually heard on July 16, it is to be noted that tbe court did not pass his order adjudging the defendants guilty of the contempt until August 25 — only twenty-two days before it was expected Mr. Titus would be able to appear for the defendants. While the facts of the case are not intricate, the questions of law involved are by no means without difficulty.. This fact is, however, not controlling. The defendants were entitled to the service of their leading counsel, under the circumstances of this ease; and the court should have granted a postponement of the hearing until the return of defendant’s leading counsel, or until it could be made to appear that such counsel would be unable to return and to resume the practice of his profession within a reasonable time. The judgment will therefore be reversed because of the refusal of the court to postpone the hearing of the contempt proceeding.

Judgment reversed.

All the Justices concur.