Bradshaw v. Stott

D.C. Circuit

Bradshaw v. Stott

7 App. D.C. 276, 1895 U.S. App. LEXIS 3635

CourtCourt of Appeals for the D.C. Circuit

DecidedNovember 21, 1895

DocketNo. 512

StatusPublished

Cited by3 cases

This text of 7 App. D.C. 276 (Bradshaw v. Stott) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bradshaw v. Stott, 7 App. D.C. 276, 1895 U.S. App. LEXIS 3635 (D.C. Cir. 1895).

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Opinion

Mr. Justice Shepard

delivered the opinion of the Court:

The postponement or continuance of a cause, in the courts of the United States, when at issue and regularly called for trial, has, like the allowance or refusal of amendments, or the granting or refusing of new trials, been generally regarded as a matter addressed peculiarly to the sound discretion of the trial court, the decision in which is not subject to review in the appellate court. Indeed it has been expressly held that error cannot be assigned upon the refusal to continue a cause. Wood v. Young, 4 Cranch, 237; Barrow v. Hill, 13 How. 54; Thompson v. Seldon, 20 How. 195, 198 ; Wright v. Hollingsworth, 1 Pet. 165, 168.

The question in this last case was on an order of the trial court permitting an amendment to the declaration, by adding á new count, which made a material change in the character of the suit. Treating that matter and the question of the granting or refusing of new trials and of motions to continue as all within the discretion of the trial court, it was said by the court: “ This, it is true, may occasionally lead to peculiar hardships ; but, on the other hand, the general inconvenience of this court attempting to revise and correct [281]*281all the intermediate proceedings in suits, between their commencement and final judgment, would be intolerable.”

It may be, as contended on behalf of the appellant, that the rigor of the old rule has been somewhat modified, and that in a case where there has been manifest abuse of its discretion by the trial court, resulting in material injury, its action in refusing to continue may be reviewed on appeal. The case cited in support of this contention (Means v. Bank of Randall, 146 U. S. 620, 629) does not directly so decide, though the doctrine may possibly be inferred therefrom.

The decision of the point is not now necessary, and we will pass it, because it is quite clear that there has been no abuse of discretion in this instance. The case had been set down for trial more than a month before. Defendants must be charged with knowledge that it would be called on the day set, as well as that Mrs. Bradshaw would not be able to attend the trial. -The case had been once tried, and she had not been called as a witness. From the evidence given by her husband, it is hardly possible that she would have given any testimony on the one material issue of the case, viz., the character of the possession of the property prior to the year 1877, when she purchased, and when, according to the plaintiff’s own proof, his adverse possession was broken. But, without regard to any other consideration, it was the defendants’ duty to support their motion by an affidavit setting out substantially the particular facts to which the absent party would testify, if given the opportunity, so that the court, to whom the motion was addressed, might be fully advised with regard to their materiality and competency. To state merely, as was done, that testimony “ is material, proper and competent,” is not sufficient. Whether testimony is material, proper and competent, is for the judgment of the court, and not of the parties and their counsel.

The court might well have overruled the motion on account of this defect in the affidavit; but instead of doing [282]*282so, it offered the opportunity to defendants’ counsel, to state orally what facts he expected his absent client would be able to testify to. The reply to the question propounded by the court was, that counsel was unable to make a statement. Considering the action of the court as before us for review, we would set a very dangerous precedent were we to hold that a case ought to be continued upon such a showing as was made in this case.

It is only necessary to say that the other assignments of error are not well taken. They require no discussion.

The judgment must be affirmed, with cost to the appellee ; and it is so ordered.

Judgment affirmed.

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Mr. Justice Shepard

delivered the opinion of the Court:

The postponement or continuance of a cause, in the courts of the United States, when at issue and regularly called for trial, has, like the allowance or refusal of amendments, or the granting or refusing of new trials, been generally regarded as a matter addressed peculiarly to the sound discretion of the trial court, the decision in which is not subject to review in the appellate court. Indeed it has been expressly held that error cannot be assigned upon the refusal to continue a cause. Wood v. Young, 4 Cranch, 237; Barrow v. Hill, 13 How. 54; Thompson v. Seldon, 20 How. 195, 198 ; Wright v. Hollingsworth, 1 Pet. 165, 168.

The question in this last case was on an order of the trial court permitting an amendment to the declaration, by adding á new count, which made a material change in the character of the suit. Treating that matter and the question of the granting or refusing of new trials and of motions to continue as all within the discretion of the trial court, it was said by the court: “ This, it is true, may occasionally lead to peculiar hardships ; but, on the other hand, the general inconvenience of this court attempting to revise and correct [281]*281all the intermediate proceedings in suits, between their commencement and final judgment, would be intolerable.”

It may be, as contended on behalf of the appellant, that the rigor of the old rule has been somewhat modified, and that in a case where there has been manifest abuse of its discretion by the trial court, resulting in material injury, its action in refusing to continue may be reviewed on appeal. The case cited in support of this contention (Means v. Bank of Randall, 146 U. S. 620, 629) does not directly so decide, though the doctrine may possibly be inferred therefrom.

The decision of the point is not now necessary, and we will pass it, because it is quite clear that there has been no abuse of discretion in this instance. The case had been set down for trial more than a month before. Defendants must be charged with knowledge that it would be called on the day set, as well as that Mrs. Bradshaw would not be able to attend the trial. -The case had been once tried, and she had not been called as a witness. From the evidence given by her husband, it is hardly possible that she would have given any testimony on the one material issue of the case, viz., the character of the possession of the property prior to the year 1877, when she purchased, and when, according to the plaintiff’s own proof, his adverse possession was broken. But, without regard to any other consideration, it was the defendants’ duty to support their motion by an affidavit setting out substantially the particular facts to which the absent party would testify, if given the opportunity, so that the court, to whom the motion was addressed, might be fully advised with regard to their materiality and competency. To state merely, as was done, that testimony “ is material, proper and competent,” is not sufficient. Whether testimony is material, proper and competent, is for the judgment of the court, and not of the parties and their counsel.

The court might well have overruled the motion on account of this defect in the affidavit; but instead of doing [282]*282so, it offered the opportunity to defendants’ counsel, to state orally what facts he expected his absent client would be able to testify to. The reply to the question propounded by the court was, that counsel was unable to make a statement. Considering the action of the court as before us for review, we would set a very dangerous precedent were we to hold that a case ought to be continued upon such a showing as was made in this case.

It is only necessary to say that the other assignments of error are not well taken. They require no discussion.

The judgment must be affirmed, with cost to the appellee ; and it is so ordered.

Judgment affirmed.

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7 App. D.C. 276, 1895 U.S. App. LEXIS 3635, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bradshaw-v-stott-cadc-1895.

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