Heirs of Lucas v. Tarver

32 Ga. 262

• Court: Supreme Court of Georgia
• Decided: January 15, 1861
• Status: Published

Opinion

JBy the Court

Lumpkin, J.,

delivering the opinion.

This was an action of ejectment brought by the heirs at law of ICeziah Lucas, against Henry A. Tarver, to recover lot No. 160, in the 8th district of Baker county. Interrogatories were filed by the defendant against plaintiffs, under the Statute of 1847, and the Acts amendatory thereof, to compel discoveries at common law: and the same not having been’ answered and returned, the defendant moved to charge the plaintiffs with a continuance of the cause, notwithstanding the interrogatories had been filed barely sixty days before the Court sat, and although it was admitted that the plaintiffs were scattered over five States—Georgia, Alabama, Texas, Mississippi and Louisiana, and one of them was at that time traveling in Europe, and there was no lack of diligence to procure the testimony.

The Court held that it had no discretion under the law, and accordingly continued the case at the instance of the plaintiffs, and it is this decision that is sought to be reversed.

We are clear that the Court is clothed-with plenary discretion; still, if it had been exercised properly in this case, we should not have disturbed thei judgment; but, well satisfied as we are that no laches was attributable to the plaintiffs, and that it was error to have charged them with one of the continuances allowed them by law, under the facts, which were not contradicted, we are constrained to reverse the judgment.

Judgment reversed.