| La. | Jan 15, 1848
T,he judgment of the court was pronounced by
On the day fixed for the trial of this cause, iu the court below, an application was made for a continuance, on the ground that Dominique Segliers, the-only counsel for the plaintiffs, was unable, from indisposition, to be present at the trial. The application was supported by the affidavit of Julien Segliers, who deposed, that his father, D. Segliers, had attended the trial of a cause, for several hours, on the Saturday previous, although at the time indisposed ; that, on the following day, his indisposition increased, and had since become so serious as to prevent him from leaving his house ; that he was the only counsel of the plaintiffs, who were in the parish .of St. Benard, twenty or thirty miles distant; that they were two poor to employ other counsel; and that the suit was intricate, and ,could not be safely tried by other counsel, without a great deal of-explanation. The application was overruled on the ground, that the cause had been too long pending to grant the continuance ; a bill of exceptions was taken to the opinion of the judge. The trial proceeded in the absence of the counsel of the plaintiffs, and a judgment was rendered in favor of the defendants. The plaintiff's have appealed. It is contended, on the part of the ■defendants, .that the counsel of the plaintiffs has become so infirm, from advanced years, that his clients could not reasonably have calculated upon his trying their cause; that this is so notorious, that it should have induced them to employ other counsel; that, in view of this fact, which was known to the judge, .and .of the long pendency of the suit, a sound discretion was exercised in refusing the continuance.
The record does not disclose the fact, that the infirmities of the plaintiffs’ ■counsel prevented him from attending to his professional business generally, nor that they had become so notorious as to warn the plaintiffs of the necessity for employing other counsel. It appears, on the contrary, that but a few days previously he had tried a cause, the investigation and argument of which occupied many hours. Besides, the judge has not based his refusal on the ground •of the known infirmities of the attorney of the plaintiffs : but of the long standing of the suit. The facts of this case present a much stronger claim for a continuance, than those in the case of Patin v. Poydras, 5 Mart., N. S. 639. Indeed, more urgent grounds could not well be presented, than the inability, from ■unforeseen illness, of the only counsel of the parties, to try a complicated cause
It is, therefore, ordered, that the judgment of the District Court be reversed, and that the case be remanded to be proceeded with according to law. The appellees paying the costs of this appeal.