Wagon Co. v. . Bostick [Bostic]

Supreme Court of North Carolina

Wagon Co. v. . Bostick [Bostic]

24 S.E. 525, 118 N.C. 758

CourtSupreme Court of North Carolina

DecidedFebruary 5, 1896

StatusPublished

Cited by2 cases

This text of 24 S.E. 525 (Wagon Co. v. . Bostick [Bostic]) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wagon Co. v. . Bostick [Bostic], 24 S.E. 525, 118 N.C. 758 (N.C. 1896).

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Opinion

Clark, J.:

Continuances are not favored by the law. One of the immortal provisions of Magna Gha/rta is that justice shall neither be delayed mor denied, and these are coupled together, for a delay of justice is often a denial of justice. Still, there are cases in which a continuance should be granted in the interest of justice.’ The Code, Section ttOl, prescribes that 'the application, if possible, shall always be made thirty days before the trial term, and that “ the applicant shall in all cases pay the cost of the *760 application.” The next Section, (402,) permitting a continuance to be granted at term, prescribes, among other requisites, that unless the affidavit shall set out that the grounds for a continuance arose or came to the knowledge of the applicant too late to apply before the term, as prescribed in Section 401, “ and that the application was made as soon as it reasonably could be after knowledge of such facts,” the continuance “ shall not be granted except on the terms of the payment of the cost in the action for the term.” These Sections, in the judgment of the Legislature, not being sufficient to protect litigants against the “ law’s delay,” which the dramatist enumerates as one of the great ills which “flesh is heir to” — the Act of 1885, Oh. 384, was passed, permitting counter-affidavits to be offered and prohibiting the judge to allow any continuance “ unless he shall be satisfied, after thorough examination of the evidence as aforesaid, that the ends of justice demand it.” If left in doubt he must refuse the continuance. It has often been held that the matter of granting or refusing a continuance was not appealable. See cases cited in Clark’s Code (2nd. Ed.) p. 368. Certainly, it must be a very gross abuse which would authorize an appeal in such cases. Here, not only was there no abuse of power, but in the light of the above statutes, His Honor ought not to have granted the continuance.

. Appeal Dismissed.

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Clark, J.:

Continuances are not favored by the law. One of the immortal provisions of Magna Gha/rta is that justice shall neither be delayed mor denied, and these are coupled together, for a delay of justice is often a denial of justice. Still, there are cases in which a continuance should be granted in the interest of justice.’ The Code, Section ttOl, prescribes that 'the application, if possible, shall always be made thirty days before the trial term, and that “ the applicant shall in all cases pay the cost of the *760 application.” The next Section, (402,) permitting a continuance to be granted at term, prescribes, among other requisites, that unless the affidavit shall set out that the grounds for a continuance arose or came to the knowledge of the applicant too late to apply before the term, as prescribed in Section 401, “ and that the application was made as soon as it reasonably could be after knowledge of such facts,” the continuance “ shall not be granted except on the terms of the payment of the cost in the action for the term.” These Sections, in the judgment of the Legislature, not being sufficient to protect litigants against the “ law’s delay,” which the dramatist enumerates as one of the great ills which “flesh is heir to” — the Act of 1885, Oh. 384, was passed, permitting counter-affidavits to be offered and prohibiting the judge to allow any continuance “ unless he shall be satisfied, after thorough examination of the evidence as aforesaid, that the ends of justice demand it.” If left in doubt he must refuse the continuance. It has often been held that the matter of granting or refusing a continuance was not appealable. See cases cited in Clark’s Code (2nd. Ed.) p. 368. Certainly, it must be a very gross abuse which would authorize an appeal in such cases. Here, not only was there no abuse of power, but in the light of the above statutes, His Honor ought not to have granted the continuance.

. Appeal Dismissed.

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Bluebook (online)

24 S.E. 525, 118 N.C. 758, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wagon-co-v-bostick-bostic-nc-1896.

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