Johnson v. Dean

48 La. Ann. 100 | La. | 1895

The opinion of the court was delivered by

McEnery, J.

In this case copies of the petition and citation were served on the defendant 25th April, 1895. The answer of defendant was filed May 27, 1895, and on this day the case was fixed for trial on June 1. One of the associate counsel moved for a continuance on account of the allegations in defendants’ answer, which, as he alleged, required time to consider, in order to prepare for the trial of the cause. And for the additional reason that plaintiff was not present, or represented, when the case was fixed.

The motion was overruled.

The case was reassigned for June 3. On this day the associate counsel moved, again, or a continuance, assigning as a reason therefor, the absence of the leading counsel in the case. At the same time an affidavit of one of the leading counsel was filed, which recited that the notice of the fixing of the ease reached the absen* counsel on May 29, and that by reason of their presence being required in other courts of the State, their employment and engagement in said courts having been made prior to the fixing of the case for trial, that it was impossible for either of the leading counsel to-be present on the day fixed for the trial.

This motion was overruled, and the trial oí the ease ordered to be proceeded with. Plaintiff filed a bill of exceptions to the ruling, and declined to participate in the trial. There was judgment of dismissal as in case of wow-suit.

No legal showing was made for a continuance, and we can not disturb the judgment. No statement was made that the counsel were absent because of physical disability.

It has been repeatedly held that a continuance will not be granted-on account of the absence of counsel engaged in professional business elsewhere. Cameron vs. Lane, 36 An. 716; Kohn vs. Short, 18 An. 291; Brown’s Executor vs. Faulk’s Administrator, 12 La. 599.

In cases of continuance the judge is vested with large discretion, and we will not disturb his ruling, unless it is manifestly a gross abuse of the discretion with which he is vested.

In this case an associate counsel was present, and we presume the. case could have been tried without manifest injury to plaintiff. Evidently this was the opinion of the District Judge, and as his ruling was based on several decisions of this court, we will affirm it.

Judgment affirm'd.