3 W. Va. 531 | W. Va. | 1869
Lead Opinion
This case, though" very imperfectly presented, yet shows satisfactorily that appellant had used due diligence to be prepared for trial, however wanting he may have been at a former term. That one of his counsel was unavoidably absent by reason of a recent and important change by the legislature in the time of holding the court, by which the counsel, by previous engagement, was required to be at another court at the same time.
The appellant’s other counsel, though present on a proceeding day of the term, was, from some cause not explained in the record, absent when the cause was heard, and the appellant left without the aid of any of his counsel, had to prepare his affidavit for continuance himself; and its imperfections furnish ample evidence of his need of counsel in the preparation and management of his cause.
I think the court ought to have continued the cause under the circumstances. Without, therefore, expressing any opinion on the merits of the case, I am of opinion to reverse the decree and remand the cause with costs to the appellant.
From the appellant’s affidavit, filed at the 'ime of the final hearing of the cause, upon which he founded lis motion for a continuance upon the ground of the absence of his counsel who were conducting the suit, (though the affidavit is not free from ambiguity and was evidently .written by the appellant himself), I think it sufficiently appears that neither of said counsel were present at the time such application for the continuance was made, though it does ap
I do not deem it necessary to express any opinion on the merits of the final decree complained of, as I think the case should be remanded for further proceedings.
In my opinion the-decree should be reversed, with costs to the appellant here, and the cause remanded to the circuit court for further proceeding.
Dissenting Opinion
disseniiente. The first ground of error assigned in this case, is that the court erred in not continuing the cause at the term when the decree was rendered in consequence of the absence of the complainant’s counsel.
It is difficult, if not impossible, to know the precise condition of the record in respect to the continuance supposed to have been applied for. The final decree dismissing the complainant’s bill was rendered at the September term, 1866, of the court. At the June term proceeding, the complainant filed his affidavit in the papers of the cause, stating, among other things, that he could not proceed safely in the case without his counsel, B. II. Smith, Esq., and B. Wilson, Esq. No order seems to have been entered in the case al that term. At the term at which the decree complained oí was rendered, the complainant filed another affidavit the greater portion of which is not intelligible. But the deponent states in the last named affidavit that “ he sincerely believes he cannot proceed and justice to be done to him' without the defence of his learned counsel, who is thoroughly acquainted with the case and the bearings on it o! law and equity, the case being of magnitude and of greal importance and burden for him, and that the deponent haa
I gather from these two affidavits that the counsel for the complainant consisted of B. H. Smith and B. Wilson, and the last of the affidavits states that Mr. Wilson was unavoidably absent, but it does not state that Mr. Smith was absent, but it does seem to appear from another part of the last named affidavit that Mr. Smith was present at least at one time during that term of the court.
It seems, therefore, that the complainant had two counsel, one of whom was present when the decree complained of was rendered. It does not appear from the affidavits of the complainants that he desired or expected any other or further preparation to be made in the case, or that he desired or expected anything to be done before the case was to be submitted. Moreover, it appears from the affidavit of Elesher, one of the counsel for the defendants, that he had submitted the cause to the court on the first day of each term of the court for four or five terms, and that either the complainant or his counsel, at each time of such submission, would call for and take the papers, saying they would examine them and hand them to the court in time for decision, or else would file an affidavit for a continuance; that when they took the papers they would keep.them until after the court adjourned, or until it was too late in the term of the court to examine them.
Under the circumstances of the case I do not think the complainant was entitled to any continuance even if he had no counsel present, and had asked the court to continue the case for that reason, which was not done so far as the record discloses; nor does the record show that any continuance was applied for at the term when the case was determined for any cause.
Decree reversed.