El Predomino C. Co. v. Blaustein Pincus

82 Pa. Super. 267, 1923 Pa. Super. LEXIS 293

• Court: Superior Court of Pennsylvania
• Decided: October 11, 1923
• Docket: Appeal, 204
• Status: Published

Opinion

Opinion by

Porter, J.,

This is an action of assumpsit to recover for tbe amount expended, by plaintiff in installing beating apparatus in tbe premises owned by tbe defendants. Tbe plaintiff recovered a judgment in tbe court below and tbe defendants appeal.

Tbe first assignment alleges that tbe court erred in permitting tbe case to be tried in tbe absence of Blaustein, one of tbe defendant partners, “after be had ruled that tbe case would be kept open pending tbe production of a doctor’s certificate.” Tbe record fails to disclose that tbe court bad made any such ruling. This shows tbe importance of filing a written motion for a continuance, stating the grounds upon which tbe motion is based. We now have it asserted by counsel for tbe defendants that when be made an oral motion for a continuance of tbe cause on tbe ground that Blaustein, one of tbe defendants, was ill, tbe court stated “it would bold tbe case open during tbe day, pending tbe production of a doctor’s certificate.” Counsel for plaintiff, on tbe other band, states that when counsel for defendants made tbe motion for continuance tbe court merely “passed tbe case until noon, at which time defendant was to produce a physician’s certificate of Blaustein’s illness.” Tbe trial of tbe case was delayed until every other case upon tbe list bad been tried, and it being then afternoon, tbe case was tried. Defendants’ counsel bad received tbe doctor’s certificate at two o’clock in tbe afternoon, but he did not take that certificate to tbe court until it bad adjourned for tbe day. Had be promptly taken tbe certificate to court tbe judge would have bad an opportunity to pass upon tbe propriety of granting a continuance in tbe circumstances, for tbe cause was not tried until after two o’clock. These facts do not appear from the record, but are the statements of counsel for the respective parties, and those that are material appear in the affidavits presented by the defendants in support of their motion for a new trial, the refusal of which motion is the subj ect of the second assignment of error. These two assignments of error are so linked together, the affidavits in support of the motion for a new trial being merely based upon the allegation that the court erred in refusing to grant a continuance, that if the second assignment be overruled the first must fall with it. The affidavit of defense in this case had been made by the partner Pincus. The affidavits filed in support of defendants’ motion for a new trial did not even aver that Blaustein was a material witness. The certificate of the physician, which was received by defendants’ counsel on the day of the trial, did not even state that Blaustein was ill, but merely said: “This is to certify that Benjamin Blaustein’s presence is required at his home to-day.” The contents of this certificate were certainly such as to cause the learned counsel for the defendants to hesitate about producing it in open court. Had that certificate been presented, it is certainly doubtful whether it should have resulted in a further postponement of the trial. Whether such delay ought to be allowed was certainly a matter within the discretion of the court. We would not be warranted in holding that the court below, upon this presentation of facts, abused its discretion when it overruled the motion for a new trial. The first and second assignments of error are dismissed. The evidence was sufficient to warrant a finding in favor of the plaintiff and the third specification is without merit.

The judgment is affirmed.