Fuqua v. Couvillion

3 La. App. 555, 1926 La. App. LEXIS 42

• Court: Louisiana Court of Appeal
• Decided: February 8, 1926
• Docket: No. 2558
• Status: Published

Opinion

REYNOLDS, J.

OPINION.

The question presented for decision in this case is, should plaintiff’s application for a continuance of the rule to show cause long enough to enable him to procure his evidence from California have been granted?

The application for continuance is supported by the affidavit of, Mr. Wade Norman, one of plaintiff’s attorneys, and sets forth that the plaintiff is a non-resident of the state of Louisiana and a resident of the state of California, and that he was at the time of the application actually in the city of Los Angeles in said last named state; that plaintiff’s evidence is material, essential and necessary to his case; that it was necessary to take plaintiff’s testimony under commission, and that it was his intention to do so, and that it was physically impossible to have a commission for this purpose issued, executed and returned between the date plaintiff’s suit was filed and the return day of the order to show cause why a preliminary injunction should not issue. That plaintiff expects to prove by his testimony that he sold the .automobile in question to Robert Laborde for the price of $800.00 in the state of California, of which amount $40.00 was paid in cash and the balance was to be paid at later date; that no part of said balance has been paid'; that at the time of the sale it was stipulated that the title to said automobile should not pass from plaintiff to said Laborde until the purchase price was fully paid; and that the laws of the state of California authorized such contracts.

Plaintiff’s suit was filed October 17, 1925, and the preliminary restraining order was granted the same day.

The rule to show cause why this restraining order should not be made permanent pendente lite was made returnable October 20, 1925.

The motion for a continuance was filed and overruled on October 20, 1925, and final judgment was rendered in the case on October 23, 1925.

We do not think that from October 17, 1925, to October 20, 1925, sufficient time for plaintiff to come in person from Los Angeles, California, to court, to give his testimony, or to have a commission issued to an officer in that city to take his testimony to be executed and returned.

Plaintiff could not anticipate the defenses set up by the seizing creditor in his answer to plaintiff’s petition in the case; and Article 464 of the Code of Practice prescribes that a party to a cause shall have reasonable opportunity to procure his evidence before being forced to trial.

We think that under the conditions disclosed by the record the motion for a continuance should have been granted and, the plaintiff not having had reasonable opportunity to present his evidence through no fault of his own, it follows that all proceedings had in the case subsequent to his application for a continuance are null and void.

This conclusion dispenses with the necessity of our proceeding to judgment on the application for writs of mandamus and prohibition.

It is therefore ordered, adjudged and decreed that the judgment appealed from be reversed, avoided and set aside, and the case is remanded to the District Court to be proceeded with according to law after giving to the plaintiff fifteen days time after the record in. the case shall have been returned to that court in which to obtain evidence in support of his application for a preliminary injunction.