Singleton v. Bond Lumber Company

277 S.W. 1018, 211 Ky. 729, 1925 Ky. LEXIS 957

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: December 8, 1925
• Status: Published

Opinion

Opinion op the Court by

Commissioner Hobson

Affirming

The Bond Lumber Company brought this suit against Ed Singleton to quiet its title to a tract of land. He filed an answer and counterclaim denying the title of the plaintiff and alleged title in him to the land. A reply was filed controverting the allegations of the answer and the issue was made up at the March term of the1 court. On July 25th following, the plaintiff took its proof and then notified the defendant that it was through and^that it would insist on a trial of the case at the next term of the court, which began on the fourth Monday in August. The defendant took no proof and on the calling of the case his attorney filed his affidavit for a continuance, stating, in substance, that the defendant was then and had been since the last term of the court absent from the county; that the affiant had not seen him since that time; that he had been waiting to prepare the case by taking the depositions of the defendant and others, since the plaintiff’s depositions were taken, but could not prepare the ease for that term of court by reason of the absence of the defendant; that he believed he could prove by the defendant and other witnesses facts establishing the de fendant’s title to the land by adverse possession and 'could do this by the next term of the court. The plaintiff filed counter affidavits showing that the defendant was continuing’ to trespass upon the land and take timber therefrom; that he was insolvent and his vendees were paying nó attention to the injunction granted in the case. The court refused to continue the case and entered judgment in favor of the plaintiff. The defendant appeals.

An application for a continuance is addressed to the discretion of' the court. It is a settled rule of this court not to disturb the decision of the circuit court on a matter of discretion, unless the discretion appears to have been abused. The reasonable inference from' the record as a whole is that the defendant had had no communication with his attorney since the March term of the court; that he had not kept his attorney even acquainted with his whereabouts and had paid no attention to the preparation of the case for trial although he had employed the attorney at the March term to attend to the case. Apparently he had left the state and nobody knew where he was. His conduct does not entitle him to the consideration of the court. It is his case. The continuance must !be granted for him and not for hisi attorney. There is no showing that sickness' on his part or any fact interfered with his attending to the case. It cannot therefore be held that the circuit court ’abused a sound discretion in refusing to continue the action. The judgment is fully warranted by the proof.

Judgment affirmed.