52 Colo. 249 | Colo. | 1912
delivered the opinion of the court:
The defendant in error brought this action in the •county court of Douglas county to recover the sum of .$154.25 due him for wages as a farm hand during the year 1906; also for the additional sum of $40.95 for articles purchased and paid for by him, for the use and at the request of the defendants, plaintiffs in error here. The judgment of the county court was in favor of the •plaintiff for the amount claimed. •
The case- was appealed to the district court, in which court, upon November 30, 1908, the defendants filed their motion for a continuance, supported by affidavits. The record does not disclose prior notice of this motion; the plaintiff was present with his witnesses ready for trial; the motion was granted; the cause continued until
Upon January 2nd, the defendants, by their counsel, appeared, and without notice, filed a second motion fpr a continuance supported by affidavits. The plaintiff, together with his witnesses, was again present and ready for trial. The defendants had not complied with the order of the court made on November 30th pertaining to the payment of sheriff and witness fees. The second motion was (upon the date filed) granted, and the cause again continued until March 16, 1909, upon condition, that defendants pay all costs accrued to date, including that for this continuance; that such costs be paid on or before the 16th day of February following, and that in default of such payment the defendants might, in the discretion, of the court, be debarred from either defending or prosecuting their cross-complaint. To this rule in imposing costs, the defendants objected for the reason, as they alleged, that .one of the witnesses knew nothing about the case and objected to the allowance of the fees of said witness, or the fees of any witness without opportunity to show they were not properly taxable. They further objected to that portion of the order pertaining to the right of the defendants to proceed further in default of the payment of costs. These objections were overruled and the cause continued.
Upon March 15, 1909, the defendants filed a motion for a third continuance, supported by affidavits. Upon the same date they filed a motion to retax costs, which included certain witness fees, mileage and sheriff fees in subpoenaing them, alleging, that none of the witnesses knew anything material concerning the complaint, counterclaim or defense; that the claim of said witnesses for mileage is not authorized by law, etc.; that the subpoena
The cause again came on for trial on March 16th, when the attorneys for the defendants appeared and challenged the jurisdiction of the court to proceed with the trial of the cause calling attention to the fact that they fiad then filed a motion for a change of venue. The court then asked as to whether they had paid the costs in compliance with his order of January the 2nd, and was advised, in substance, that they had paid $10 of the clerk’s costs; that the other costs they disputed, and had filed a motion to retax them; that while there was a dispute they did not desire to pay them, and presented many other frivolous reasons as to why they should not pay them. They further contended that the court had no right to take up any matter other than that involved in the motion for a change of venue. The court ruled, in substance, that inasmuch as the defendants declined to comply with the terms of the orders of November 30th and January the 2nd, upon which the continuances were granted, that pursuant to the conditions contained in the order of January the 2nd, they would not be allowed to proceed' further in the matter and ordered the plaintiff to proceed with the trial. Before doing so the defendants’ counsel were allowed to make all necessary objections and exceptions, including one to the final judgment, with the right to appeal, etc. The court then proceeded to the trial of the cause without a jury. Judgment was in favor of the plaintiff for the same amount awarded him by the county
It is claimed that the court erred in its order of January 2nd, when, as a prerequisite to the granting of the second continuance, it imposed the payment of certain costs by the defendants; and also in ruling that in default of its payment they should, in the discretion of the court, be denied the privilege of defending or prosecuting their counterclaim; and on the 16th of March, upon their refusal to comply with the former orders, in refusing to allow the defendants to participate in the trial, and in refusing to hear their motion for, and to grant them a change of venue, and in refusing to hear and grant their third motion for a continuance. It is urged, first, that the court had no right to impose any of these conditions or to refuse any of these matters without terms; and second, that such action was arbitrary, unjust and an abuse of discretion. Some of these questions are not properly before us; we cannot agree with the defendants pertaining to those which are. The argument to support them is based upon a false premise. The first motion for a continuance was granted upon very reasonable terms, which were not complied with. It is conceded they could have been. The excuses given were frivolous. It is urged that the first, as well as the second, continuance was a matter of right which the court had no discretion concerning. In this counsel are clearly in error. The rule is well settled in this state that the granting or refusing of an application for a continuance is largely in the discretion of the trial court and only for an abuse of such discretion will its ruling be disturbed.—Section 194, Revised Code, 1908; The Hartford Fire Insurance Co. v. Hammond, 41 Colo. 323; Purse v. Purcell, 43 Colo. 50; Goldberger v. The People, 45 Colo. 327.
The diligence used to secüré the deposition of the witness Cook is insufficient. It is to the effect, that Cook was an important witness for the defendants; that he had been located in Cheyenne, Wyo., and had been instructed to go to C. W. Burdick in that city, to whom the dedimus was to be issued, and there give his testimony; that one of the counsel for the defendants went to Niew-York early in December but did not return until December 24th; that he had prepared interrogatories for Cook. The defendants were represented by two attorneys; there is no showing that in the absence of the one in the east the other made any effort to do anything. There was no showing that the personal attendance of this witness could not have been secured. There was no showing that any effort was made to secure his deposition other than to request him to go to the office of a certain person in Cheyenne. In many other respects this showing is insufficient.
The only other reason assigned for this second continuance pertains to the illness of the defendant, Patrick F. Ford. It is shown, that he had the rheumatism; that on December 26th he was ordered by his physician to go to Salt Lake City. There was no showing as to when he would return or any reasonable expectation that he would obtain relief so that he could attend the trial within any reasonable time. There was no showing why his deposi
“It is insisted, however, that the record shows that the appellant objected to accepting the continuance 011 the terms imposed. We do not so construe the record. The recital following the order of continuance is—‘to which order defendant excepts.’ It is obvious that the appellant enjoyed the beneht of the continuance, and did not object to that; otherwise, he would have insisted on proceeding with the trial of the cause. His exception, according to a well settled rule, must be most strongly construed against him, as the excepting party. It must be taken as an acceptance of the continuance, with an objection to the terms imposed. This was not permissible. The enjoyment of the benefit of the order as made, was an acceptance of the condition with which the court saw fit to burden it. The two should have been accepted or rejected as an entirety, and this course does not seem to have been followed.” '
The same principle, in substance, is announced in the case of Damp v. The Town of Dane, 33 Wis. 430.
Was the court justified in imposing terms as a condition upon ■which the continuance was granted? The
• • When the 'cause came on for trial March 16, 1909, the defendants presented further dilatory pleas, and also, in- substance, defied the court in the enforcement of its
The fact that the plaintiff was insolvent, for which reason it is alleged in case of ultimate recovery by the defendants, these costs could not have been recovered back, is no justification for the refusal to comply with the order. The court had the right to require, and it is debatable if the effect of the order is not, that these costs were, in no event, to follow the result of the litigation, but it is unnecessary to interpret the meaning of the order in this respect. Likewise, the motion filed at that time to retax the costs was no defense to their failure in complying with it. They included only the statutory fees for the attendance of the witnesses, together with the fees of the sheriff in subpoenaing them, with some small amount of clerk’s costs, but instead of paying them or showing their inability to do so, we find the defendants, by their counsel, again appearing upon the day set for trial and presenting three additional motions; to wit, motion for a change of venue; motion to retax the costs of certain witnesses who as yet had never had an opportunity to testify, stating as a reason that they knew nothing about the case and that their testimony would have been immaterial, etc.; and lastly, a motion for a third continuance, also declining to comply with the former order of the court; and in addition, at this late date, challenging the jurisdiction of the court to do anything other than to grant their motion for a change of venue. The defend
The same principle was involved in the case of Supreme Lodge K. of H. v. Davis, 26 Colo. 252, pertaining to the amendment of a pleading wherein at page 255, it is said:
“ * * * where the party making such application is granted leave conditionally, it is optional with him to accept or not, upon the terms imposed, and if he assents thereto by complying with such conditional order, and*260 avails- himself of the leave‘granted, there, is nothing--to review. Having acquiesced -in the judgment, he has waived any error which the court may have committed in the imposition of a penalty as a condition precedent to the allowance of the amendment requested.”
Perceiving' no prejudicial error the judgment is affirmed. Affirmed.