Watts v. Cohn

40 Ark. 114

• Court: Supreme Court of Arkansas
• Decided: November 15, 1882
• Status: Published

Opinion

Smith, J.

These were actions by the payee ■ against the makers of certain promissory notes. The answers admitted the execution of the notes, but set up matters in avoidance. When the causes were reached upon the call of the docket, an ■ application was made in behalf of the defendants for a continuance on account of the absence of themselves and other material witnesses, all of whom, except one, resided in the Indian Territory, but at no great distance from Eort Smith, where the Court was held; and also on account of the illness of Mrs. Watts, wife to the principal debtor.

We can not review the ruling of the Court refusing this application for the reason that the affidavit, upon which it is based, is not brought upon the record by bill ofexcepti©ns, and also because the refusal to continue for the term was no£ ma(je a ground of the motion for a new trial. Phillips vs. Peardon, 7 Ark., 256; Evans vs. Rudy, 34 Id., 384; Wise vs. Martin, 36 Id., 305.

The cause was set down for trial on the 29ih June, nine days later. On that day Watts failing to appear, his attorneys moved the Court to postpone to a future day of the same term, it being alleged that he was detained by the se^rious indisposition of his wife. This, motion was accompanied by letters from Watts and the physician in attendance on her. The cases were laid over until July 1 and again until July 2, when juries were impannelled to try the issues joined, verdicts returned and entered for the plaintiff in the three cases; Watts and his witnesses being absent and his attorneys protesting against being forced into a trial.

Motions for a re-trial, to which were attached affidavits, showing the physical condition of Mrs. Watts, were overruled. It appears from the affidavit of Breedlove, one of the defendants, that on the day of trial, Watts was in his store, ten miles from Ft. Smith, selling goods, waiting upon customers and attending to his ordinary business. He was asked why he was not at Court and if the trial of his cases had not been fixed for that day. He replied that*his lawyers had promised to inform him when they were to come on. Breedlove then told Watts' that according to his understanding, the cases had been postponed from June 29th to July 2nd, on account of his wife’s condition. Watts said she' had been right sick, but was better now.

Questions as to the trial or continuance of causes rests so much iu the sound discretion of the trial Court that it must be a very capricious exercise of power or a very flagrant case of injustice that the Appellate Court will interpose to correct. Campbell vs. Strong, Hempst. Rep. 265; Barris vs. Wise, 2 Ark., 33; Turner vs. Eustis, 8 Id., 119; Stewart vs. State, 13 Id., 720; Hunter vs. Gaines, 19 Id., 92; Stillwell vs. Badgett, 22 Id., 164; Wilde vs. Hart, 24 Id., 599 ; Thompson vs. State, 26 Id., 323; Edmonds vs. State, 34 Id., 720.

Affirmed.