105 | Ga. Ct. App. | Feb 14, 1907
A distress warrant and counter-affidavit were pending in the justice’s court, with M. L. Hathcoek as plaintiff, and Lot Favors as defendant. Two days before the regular term of the justice’s court, at which the case was to be tried, the justice received from the attorneys of both plaintiff and defendant the following written agreement:
“Douglasville, Ga., Nov. 12th, 1903.
"Mr. F. M. Yancey, Jr., Chapel Hill, Ga.,
Dear Sir, — On account of the near approach of our superior court, and the probabilities of the trial of the eases between Lot*222 and Hester Favors against M. L. Hatheoek, now pending and set for trial in that court, we have agreed to continue all the cases between said parties in your court from next Saturday until the regular term of December next. Very truly yours,
W. A. James, Atty. for Lot Favors.
J. S. James, Atty. for Hatheoek.”
Notwithstanding the agreement, the justice, on the call of the •case, dismissed the counter-affidavit and entered. up judgment ■against the defendant. The petition for certiorari assigned this action of the justice as error. On hearing the certiorari, the superior court overruled the same, and this judgment is brought here for review.
In answer to the writ of certiorari, the justice stated, that he had received the said written agreement of counsel, but that on "the day when the case was to be tried, and had been reached in its order, the plaintiff was in attendance on the court with his attorney, B. G. Griggs, and objected to the continuance of the ■case; that plaintiff swore he knew nothing of the agreement made by his former attornejr, and that, as a matter of fact, he had settled with his said attorney, and had employed Mr. Griggs to .represent him in said case, and that the case had been continued for several terms at the instance of the defendant, with great inconvenience to the plaintiff and his witnesses. For these reasons the said agreement was disregarded; and when the case was called ■and the plaintiff, by his attorney, B. G. Griggs, made a motion to dismiss the illegality, the motion was sustained, and judgment entered against the defendant.- In view of these facts, we are not prepared to hold that the justice abused Ms discretion in refusing to continue the ease. Continuances are always addressed to the sound discretion of the court. The agreement of the attorneys for the parties, to continue a ease, is not binding upon the court. 'Of course, such agreement should be given due consideration by the judge, in the exercise of his discretion. It should not be arbitrarily disregarded. But when, as in this case, the plaintiff appears in court and insists upon the trial of the case, notwithstanding the agreement of his attorney, he is entitled to have it, when he states on oath that the attorney who made the agreement to continue Ms case did not then represent Mm, and that the ease had been continued several times at the instance o'f