158 Ky. 700 | Ky. Ct. App. | 1914
Opinion of the Court by
Affirming.
Paintsville is a town of the sixth class. On August 7, 1913, its Board of Trustees enacted an ordinance preparatory to the annexation of certain territory adjacent to the corporate limits of the town. This ordinance was published according to law; and on September 4, 1913, and within the thirty days allowed by the statute, appellants, George W. Preston, a resident and owner of real estate in the territory proposed to be annexed, together with eight other persons who were the owners of real estate within said territory, but not residents therein, instituted this action in the Johnson Cir
Pursuant to the statute governing such proceedings, section 3665, Kentucky Statutes, the answer of the town was filed on September 10, 1913. Notice of the filing thereof was served upon the attorneys for the plaintiffs. On September 16, 1913, the defendant town began the taking of its proof in the case, and continued such taking until September 24, on which date it notified the attorneys for the plaintiffs that the case would be pressed for trial at the next regular term of the court in November, the attorney for the town offering and agreeing to waive formal notice of the taking of depositions, and to be present upon the slightest notice.
The plaintiffs failed to take any proof; and on November 6, 1913, the fourth day of the regular November term of the court, defendant town entered a motion to submit the cause for trial. On the next day, plaintiffs moved the court to continue the case, and filed in support of said motion, the affidavit of one of the attorneys for the plaintiffs.
The court overruled the plaintiffs’ motion for a continuance, sustained defendant’s motion to submit the case, and .upon a trial thereof, adjudged the ordinance valid, approved same, and authorized the Board of Trustees to proceed with the annexation of the territory in question. From that judgment, the plaintiffs appeal.
Georgetown is a city of the fourth class, and the proceedings in such cases are controlled by section 3483, Kentucky Statutes. Under this section, the proof is produced orally in court; and in that ease, the continuance was sought upon the ground of absent witnesses. Those opposing the proposed reduction were defendants, the city having instituted the action as plaintiff, under the provisions of the statute mentioned. The affidavit was in the usual technical form, showed diligence, stated what the absent witnesses would testify, if present, and the truth as well as the materiality of such testimony, and was verified by one of the parties defendant, and in fact constituted a perfect showing for a continuance,
But such a state of facts is not here presented. The statute governing this proceeding provides that the proof shall be taken by deposition, and the case shall be tried according to the rules and practice prescribed for the trial of equity causes, but without the intervention of a jury. ,
The affidavit for a continuance filed herein was that of one of the attorneys for the plaintiffs. It offered as ground for the continuance sought, the fact that counsel for plaintiffs had been unable to find time to prepare the case for trial; and that one of the nine plaintiffs had suddenly become insane. Here, a continuance is sought, not as in the Georgetown case, upon the affidavit of the parties showing in what manner they expected to be benefited by a continuance, but upon mere want of preparation. If employed counsel did not have time to prepare the case for trial, other counsel should have been engaged, or some reason shown by the affidavit of the parties themselves that would excuse their failure to employ other counsel. The affidavit was insufficient, and the court did not abuse a sound discretion when it overruled the motion for continuance. Higgins v. Gose, 144 Ky., 123, 137 S. W., 1038. And, especially is this true in the light of the fact that defendant took its proof without waiting for the plaintiffs to take theirs, and at the close of its taking, notified the attorneys for the plaintiffs that the case would be pressed for trial at the next regular term of the court.
According to the testimony for the town, the number of persons owning real estate within the territory in question is not less than fifty-one; but how many of these are resident freeholders is not shown. However, seven persons testified that they were resident freeholders of said territory, and that they approved its annexation; and it was alleged in the petition that only one of the plaintiffs is a resident freeholder. So there are at least eight resident freeholders of the. territory proposed to be annexed, only one of whom is remonstrating. It is apparent, therefore, that less than seventy per cent of the resident freeholders are remonstrating against the proposed annexation.
The statute provides that if the court shall be satisfied that seventy-five per cent or more of the resident freeholders of the territory sought to be annexed have remonstrated, then the annexation shall not take place, unless the court shall find that a failure to annex the territory will materially retard the prosperity of the town and of the owners of property within the territory in question; But if less than seventy-five per cent have
It is abundantly shown by the record, and of course by uneontradicted evidence, as the only evidence in the case is that of the defendant, that less than seventy-five per cent of the freeholders residing within the territory sought to be annexed have remonstrated against the proposed annexation; and that it will be for the best interests of the town of Paintsville and will cause no material injury to those owning real estate within said territory. The Chesapeake & Ohio Railway is the only railway near the town. Part, if not all . the territory sought to be annexed lies between the town of Paints-ville and the depot. The people of the town are dependent upon this depot for the shipping of their freight, passenger travel and mail. The proper conduct of business requires that a proper roadway for vehicles, as well as sidewalks for foot-passengers shall be provided through the territory sought to be annexed. It is in substance a part of the town now, for it is inhabited largely by people who do more or less business in the town. And, the territory in question will be benefited by the extension of the street lighting system and police supervision, and improved sanitary conditions. This evidence amply sustains the finding of the chancellor. Collins et al v. Town of Crittenden, 70 S. W. 183, 24 R. 899.
The judgment is affirmed.