206 P. 347 | Mont. | 1922
delivered the opinion of the court.
This is an action to foreclose a. mortgage upon real estate. The defendants admit its execution, but, by way of affirmative defense, allege that the defendants J. Gerry Whitright and Eva C. Whitright were induced through fraudulent representations to execute and deliver to plaintiff the mortgage in suit. The reply denies the allegations of fraud. On November 3, 1919, the case was called and set for trial December 1. On November 29 defendants moved for a continuance over the term. The setting was vacated, and the ease reset for December 4. On that date the defendants made a supplemental motion for another continuance. This was denied. Upon the proof adduced, the court rendered judgment of foreclosure, with costs. Defendants appeal. Their counsel contend that the absence of the defendants J. Gerry Whitright and Eva C. Whitright from the state, the illness of the latter, her inability to attend the trial and the incapacity of Mr. Russell, one of their counsel, due to injuries received in a railway accident on September 18, furnished grounds enough to warrant the trial court in granting the last motion for a continuance. Respondent opposes this contention with the argument that, had defendants’. counsel exercised due diligence, the deposition of Mrs. Whitright could have been taken and used upon the trial within her presence and that counsel’s participation in the trial of another case at Missoula at and prior to December 4 did not furnish sufficient excuse to warrant a continuance.
Conceding the first of respondent’s contentions, was the denial of a continuance an abuse of discretion? The evidence
Bespondent’s counsel devote much of their oral and printed argument to the proposition that if the defendant Eva C. Whitright was ill and unable to attend the trial it was a fact known to counsel long before December 4, and a condition which could have been met by the seasonable taking of her deposition for use upon the trial of the cause. Much less effort is made to meet the defendants’ more serious contention that Mr. Bussell’s physicial disability, its effect upon the conduct of the business of the firm, the trial of cases committed to the care of the firm, and more particularly the trial of a ease which began on December 1 and was in progress and unfinished at the time the present case was to be tried, sufficed to call for the exercise of the court’s discretion in their favor.
The application was overruled, apparently, upon the ground that the excuses offered were not sufficient to justify another continuance. Of course, it would have worked some degree of hardship upon the plaintiff to continue the case after incurring the expense of traveling from the state of Minnesota to Hamilton, Montana, and of bringing his witnesses to court; and perhaps, under all the circumstances, the court might have imposed that expense upon the defendants as a condition for granting the continuance. Such hardships are frequently necessary incidents to even the best system of judicial procedure. But they do not always furnish the sole test for determining the merits of a motion to continue a cause. Having reached the issue to be tried, the plaintiff had the legal right
The affidavits show the undisputed facts to be: That Mr. Russell was the senior member of the law firm of Russell & Madeen, attorneys for the defendants; that he was the only person in the state with full knowledge of the matters making up the defense; that on September 18 he was so seriously injured in a railway accident that for some weeks thereafter he was confined to his home in the care of a physician, and subject to frequent severe attacks of neuritis; that thereafter, and up to and during the trial of a contested will case begun in the district court at Missoula on December 1, he continued to suffer from those injuries, but nevertheless, under the influence of stimulants, took an active part in the trial of the cause; that on the afternoon of December 3 he was scarcely able to perform the work necessary to the preparation of affidavits and other papers to support the motion for a continuance; that upon the advice of his physicians he intended, at the close of the trial in Missoula, to go to some hospital or hot springs for treatment; that there were eleven or twelve witnesses still to be examined in that case, with evident improbability that the cause would be finished in time to permit him to conduct the trial of this ease at Hamilton the following day had he
Judgment reversed, with directions to the district court to set it aside upon such reasonable terms as may be just.
Reversed.