State Ex Rel. General Exchange Ins. v. Crawford

Ohio Court of Appeals

State Ex Rel. General Exchange Ins. v. Crawford

131 N.E.2d 661, 99 Ohio App. 129, 58 Ohio Op. 215, 1955 Ohio App. LEXIS 615

Ohio Court of Appeals·Decided February 11, 1955·No. 2326·Published

Opinion

Per Curiam.

This cause is submitted on a demurrer to a petition for a writ of procedendo. The petition alleges that an action in which relators were parties plaintiff was duly set for trial and that three days before the trial date, upon motion of defendant, a continuance was granted by respondent.

The granting or refusing of a continuance rests within the .sound discretion of the trial court. 9 Ohio Jurisprudence, 202, Section 7; State, ex rel. Buck, v. McCabe, 140 Ohio St., 535, 537, 45 N. E. (2d), 763. An appellate court will not interfere with the exercise of such discretion unless the action of the court is plainly erroneous and constitutes an abuse of discretion. Norton v. Norton, 111 Ohio St., 262, 145 N. E., 253. The allegations that relators have no adequate remedy at law and that the trial court abused its discretion are legal conclusions and are not admitted on demurrer. Gannon v. Gallagher, Dir., 145 Ohio St., 170, 60 N. E. (2d), 666. Relators fail to allege facts which constitute an abuse of discretion; neither does it appear that they are without an adequate remedy at law.

Demurrer sustained.

Miller, P. J., Hornbeck and Wiseman, JJ., concur.

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Per Curiam.

This cause is submitted on a demurrer to a petition for a writ of procedendo. The petition alleges that an action in which relators were parties plaintiff was duly set for trial and that three days before the trial date, upon motion of defendant, a continuance was granted by respondent.

The granting or refusing of a continuance rests within the .sound discretion of the trial court. 9 Ohio Jurisprudence, 202, Section 7; State, ex rel. Buck, v. McCabe, 140 Ohio St., 535, 537, 45 N. E. (2d), 763. An appellate court will not interfere with the exercise of such discretion unless the action of the court is plainly erroneous and constitutes an abuse of discretion. Norton v. Norton, 111 Ohio St., 262, 145 N. E., 253. The allegations that relators have no adequate remedy at law and that the trial court abused its discretion are legal conclusions and are not admitted on demurrer. Gannon v. Gallagher, Dir., 145 Ohio St., 170, 60 N. E. (2d), 666. Relators fail to allege facts which constitute an abuse of discretion; neither does it appear that they are without an adequate remedy at law.

Demurrer sustained.

Miller, P. J., Hornbeck and Wiseman, JJ., concur.

State Ex Rel. General Exchange Ins. v. Crawford, 131 N.E.2d 661, 99 Ohio App. 129, 58 Ohio Op. 215, 1955 Ohio App. LEXIS 615 (Ohio Ct. App. 1955).

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