Baker v. Texarkana Nat. Bank

74 F. 598, 20 C.C.A. 545, 1896 U.S. App. LEXIS 1958

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 28, 1896
• Docket: No. 436
• Status: Published

Opinion

PARDEE, Circuit Judge

(after stating the facts as above). The Louisiana Revised Code of Practice provides:

“Art. 364. Third persons not originally party to the suit, may'intervene in the same, and, like the defendant, institute demands incidental to the main action, either before judgment or on exception; and these demands are called the intervention and opposition of third persons.”

“Art. 391. One may intervene either before or after issue has been joined in the cause, provided the intervention do not retard the principal suit; the person intervening must be always ready to plead or to exhibit his testimony, because he has always his remedy by separate action to vindicate his rights.”

Under these provisions the respective plaintiffs in error were permitted to intervene in the main case pending in the circuit court. The record shows that both had ample time within which to plead and put their interventions at issue, the intervention of Baker having been filed nearly one year before the case was called for trial. The record further shows that the case was called for trial, all the parties, including interveners, declared themselves ready, a jury was impaneled, and evidence between the main parties to the suit adduced and closed, when the interveners moved for a continuance, involving a discharge of the jury and a postponement of the case to the next term of the court.

The power to review the discretion of a trial court in granting or refusing the continuance of a cause when application therefor is seasonably made has been denied from an early day (Woods v. Young, 4 Crunch, 237; Sims v. Hundley, 6 How. 1; Barrow v. Hill, 13 How. 54; Thompson v. Selden, 20 How. 194; McFaul v. Ramsey, Id. 523; Cook v. Burnley, 11 Wall. 659), and we know of no cases to the contrary. In Thompson y. Selden, supra, the supreme court say:

“And as regards the motion to continue tlie case, it ñas often been derided by tliis court that the refusal of an inferior court to continue a case to another term cannot be assigned for error here. Justice requires that the granting or refusal of a continuance should be left to the sound discretion of the court where the motion is made, and where all of the circumstances connected with it, and proper to be considered, can readily be brought before the court.”

If this be the correct rule, — and under the great authority declaring it, it cannot be disputed, — then, a fortiori, in a case where an application for a continuance is made by an intervener who is required to be always ready to plead or exhibit his testimony because lie has always his remedy by a separate action to vindicate his rights, and such application is not made seasonably, hut during tlie trial after the jury lias been impaneled, and the necessary parties to the suit have submitted their evidence, “the wise discretionary power of the court” in granting or refusing the application cannot be reviewed.

The second assignment of error of the plaintiff in error Baker— that the court erred in rejecting the evidence offered by the in-tervener — is not well taken. The bill of exceptions shows that the evidence offered was rejected because there was no issue joined between the intervener and the defendant. The presumption from the record is that the evidence offered was against the defendant in the case, as against whom, owing to intervener’s laches, there was no issue.

The assignment of error of both interveners tiiat the court erred in refusing a new trial cannot be considered. The practice on such assignments has been settled by this court and the supreme court so frequently that it is unnecessary to discuss the matter or cite authorities. The judgment of the circuit court is affirmed.