118 Ky. 251 | Ky. Ct. App. | 1904
Opinion op the court by
Reversing
The city of Georgetown, August 1, 1902, by its board of council, passed an ordinance proposing to strike certain territory therein described from the corporate limits of that city, after which a petition was filed in the Scott circuit court by the city, through its mayor and hoard of council, in accordance with section 3483, Kentucky -Statutes, 1903, alleging a compliance with the provisions of that section, and praying the court to strike the described territory from the corporate boundary of the city. At the October term, 1902, of the circuit court the appellant Z. R. Gaskin and about eighty other persons, citizens and legal voters of the territory proposed to he stricken off, filed an answer to the petition of appellees, which traversed the allegations thereof, and
One of the grounds urged by appellants for a reversal of the judgment is the alleged error of the lower court in refusing the continuance. Trial courts are allowed a broad discretion in the matter of granting or refusing continuances,
We take it to be the meaning of the statute, supra that, though the trial court is required to consult the wishes of the resident voters or property owners of the territory sought to be added or stricken off, the will of the majority, the one way or the other, is not absolute, but should be permitted to control, unless the conditions mentioned in the statute that would prevent its doing so are found by the court to exist. In any event, it was not only proper, but necessary, for the chancellor to ascertain whether a majority of the resident voters of the territory proposed to be steicken from the boundary of the city of Georgetown favored or opposed the change, and whether such of the persons as were resisting the changes were or were not resident voters of the territory proposed to be stricken off; for these were questions that vitally entered into, and should have had great weight in, the determination of the main question involved. There can, therefore, be no doubt of the materiality of the testimony of the absent witnesses set forth in the affidavit. The fact that the absent witnesses were residents and voters of
If the fact that a majority of the voters residing in the territory proposed to be stricken off were opposed to the striking off could have been ascertained in no other way than by introducing as witnesses all , the voters in the territory, appellants had the right to introduce them upon the trial, if their attendance could reasonably be procured, and were entitled to a reasonable time and opportunity to have them summoned. The question of diligence in any given case must depend upon, the facts and circumstances thereof.
Appellants and those associated with them in resisting the proposed change of boundary were not made parties to the action by appellees, but upon their own motion, and by filing answer during the áppearañce term. The framers of the .statute evidently had in mind the difficulties likely to arise in the carrying out of its provisions. So, in view of the large number of persons to be affected by changes of municipal boundaries, to give them opportunity to make
' It appears from the record that on October 23, 1902, this case was assigned for trial on the following day, October 2áth. It further appears that on the 23d of October, and immediately after the assignment of the case for trial, appellants caused- subpoenas to be issued for eighty-five witnesses, including those for whose absence the continuance was
It is, however, insisted for appellees that, if the witnesses named in the affidavit all lived in the territory proposed to be stricken off, they could or ought to have been found by the officer to whom the subpoenas were given for service, and the fact that they were not found is urged as proof that they did not live in the territory indicated. There being nothing in the record to contradict the statements contained in the affidavit that they did reside in such territory, that statement,, for the purpose of determining whether the continuance should have been granted, must be accepted as true. Besides, considering the shortness of the time 'afforded him for serving the subpoenas-, it is not strange that the sheriff should have failed to find twenty-four out of eighty-five witnesses named therein. Their temporary absence from home, whether to avoid the subpoena or on legitimate
The case of Lebanon v. Creel, 109 Ky., 363, 59 S. W., 16, 22 Ky. Law Rep., 865, relied on by appellants, was decided! under the former statute, some of the provisions of which were materially different from those of the present or amended statute, for which reason we do not regard that decision as applicable here.
Being of the opinion that there was no want of diligence upon the part of appellants in this case, therefore, because of the error of the lower court in refusing to grant them the continuance asked, the judgment is reversed, and cause remanded, with directions to grant them a new trial, and for further proceedings consistent with the opinion herein.