Horr v. Easton

114 Neb. 829 | Neb. | 1926

Dean, J.

This is a suit for the foreclosure of a real estate mortgage in the district court in and for Kimball county wherein the plaintiff alleges that there is due and owing to him $1,400 pursuant to a note and a five-year mortgage executed by defendants and delivered to plaintiff on or about September 3, 1920. The petition is in the usual form and was filed January 4, 1924. February 29, 1924, an answer was filed wherein the defendants admit the making, execution and delivery of the note and mortgage in suit, but a counterclaim is pleaded which is based on an alleged failure of consideration for a considerable portion of the amount for which the instruments in suit were given, and it was also pleaded that the execution of the instruments sued on was induced by fraudulent representations of plaintiff. On May 5, 1924, a' motion for continuance was filed wherein it is set forth generally that a party therein named was a material witness for defendants and, if present, would testify to facts which were material to the defense on defendant’s part, and it was further averred that defendant knew of no other witness by whom to establish such facts, and that such witness would be present at the following September, 1924, term of the court, or failing to have him present, his deposition would be procured. We deem it sufficient to say that the allegations set forth in the foregoing affidavit, which need not be reproduced here, if established, would tend to constitute a defense. There is also an affidavit filed by defendant’s counsel wherein it appears that his client was ill and was unable to appear at the date set for the trial, and this averment was supported by an affidavit of a' physician who attended defendant in his illness, and he avers that defendant was, at the time, suffering from an ailment, namely, “epistaxis, or hemorrhage from nasal canal,” and that at the date of the trial he was not in a fit physical condition to safely leave his home. The court, overruled the motion for a continuance, and defendants, alleging error, after perfecting the required bond, prosecuted an appeal. No counter affidavits were filed by plaintiff. Hoover v. Hoover, 5 Neb. (Unof.) 167; In re Townsend's Estate, 122 Ia. 246. In speaking of the absence of the litigant the Iowa court, speaking by Judge Deemer, said: “Her counsel were entitled to her presence, counsel and advice during the entire trial. The evidence discloses that she knew more about the real issues than any one else, and, while she may have been incompetent as a witness to testify to many of these matters, there was the more need for her advice and counsel during the trial.” In Mathews v. Willoughby, 85 Ga. 289, the court said: “A continuance should have been granted on motion properly showing, on the call of the case, that the defendant was sick with pneumonia and would be unable to attend court for five or six days, in connection with his counsel’s statement that he could not go to trial without the presence of his client; the only counter-showing being to the effect that the defendant was seen two days before, going from his home.”

We think, in view of the entire record, that the court erred in overruling defendant’s motion for a continuance and in this view of the case the judgment of the district court must be reversed and the cause remanded for a new trial.

Reversed.