57 So. 716 | Ala. | 1912
It was formerly held by this court that the granting or refusing of continuances was entirely within the discretion of- the trial court, and that its exercise was “beyond the jurisdiction of the appellate court to control or revise.” — Humes v. O’Bryan, 74 Ala. 64, 78; Campbell v. White, 77 Ala. 397. Later it was said that “the continuance of a case is within the discretion of the trial court, and the exercise of this discretion will not be reviewed on appeal, except in a case where it is shown that the court has abused the discretion vested in it.” — Spann v. Torbert, 130 Ala. 541, 30 South. 389. Still later it has been declared that the action of the trial court will not be revised on appeal unless a gross abuse of the discretion is shoAvn. — Kelly v. State, 160 Ala. 48, 49 South. 535. It seems, however, that in criminal cases the constitutional right of the defendant to have compulsory process for his Avitnesses may sometimes be so involved in the question as to nullify the general rule as to discretion. — Rodgers v. State, 144 Ala. 32, 40 South. 572.
In the present case the suit Avas filed on March 22, 1909, and a demurrer Avas filed to the complaint on April 27, 1909. On October 20, 1909, and again on February 21, 1910, the cause Avas continued at the instance of defendant on account of his sickness. On June 2, 1910, defendant again moved for a continuance, show
On June 24, 1910, defendant filed a motion tó set aside “that part of the order of this court taxing him with the cost of said cause” on the ground, primarily, that he was sick and unable to attend court. Several other grounds are stated, but they do not merit mention or consideration. In support of this motion the testimony of defendant’s attending physician was offered, and it seems to establish the fact of defendant’s physical and mental unfitness to take part in the tidal of his case — at least there was no testimony offered to the contrary. This motion was heard and overruled on June 29, 1910, to which defendant duly excepted. The transcript shows that this appeal is taken from the judgment for costs rendered June 2, 1910, and also from the judgment of June 30 (29?); 1910.
As has already been noted, the showing made for a continuance on June 2nd was wholly insufficient; and,
The imposition of costs as a condition to granting the continuance being Avithin the unrevisable discretion of' the trial court, it folloAvs that no appeal lies from the order and judgment of the court in that behalf, and the appeal must therefore be dismissed.
Appeal dismissed.