§ 25-1148 — Continuance or adjournment of causes pending; motion; affidavits; oral testimony; order; effect

Nebraska § 25-1148

• Jurisdiction: Nebraska
• Ch. 25: Courts; Civil Procedure

Text

Whenever application for continuance or adjournment is made by a party or parties to any cause or proceeding pending in the district court of any county, such application shall be by written motion entitled in the cause or proceeding and setting forth the grounds upon which the application is made, which motion shall be supported by the affidavit or affidavits of person or persons competent to testify as witnesses under the laws of this state, in proof of and setting forth the facts upon which such continuance or adjournment is asked. After the filing of such application and the affidavits in support thereof, the adverse party shall have the right to file counter affidavits in the matter. Either party may, upon obtaining leave of the court, introduce oral testimony upon the hearing of such application. The court may, upon the hearing, in its discretion, grant or refuse such application, and no reversal of such cause or proceeding shall be had on account of the action of the court in granting or refusing such application except when there has been an abuse of a sound legal discretion by the court.

Legislative History

Source: Laws 1911, c. 39, § 1, p. 205; R.S.1913, § 7889; C.S.1922, § 8831; C.S.1929, § 20-1148; R.S.1943, § 25-1148; Laws 1991, LB 732, § 48. Annotations: 1. Showing required 2. Discretion of court 3. Miscellaneous 1. Showing required A court can grant a motion to continue even if the written motion was not filed, so long as the motion is set forth in the record. State v. Brooks, 285 Neb. 640, 828 N.W.2d 496 (2013). An application for continuance must be in writing and supported by an affidavit which contains factual allegations demonstrating good cause or sufficient reason necessitating postponement of proceedings. Williams v. Gould, Inc., 232 Neb. 862, 443 N.W.2d 577 (1989). Denial of motion for continuance was proper where no written application and affidavit were filed. Stastny v. Tachovsky, 178 Neb. 109, 132 N.W.2d 317 (1964). Affidavits for continuance must allege facts and circumstances from which legal conclusions can be drawn. State v. Russell, 173 Neb. 882, 115 N.W.2d 578 (1962). In reviewing order denying a continuance, it is proper to look to the entire record in the case. Kennedy v. State, 171 Neb. 160, 105 N.W.2d 710 (1960). Where motion for continuance was not supported, denial was not error. Vasa v. Vasa, 165 Neb. 69, 84 N.W.2d 185 (1957). In order to be considered by appellate court, affidavits must be preserved by bill of exceptions. Freeman v. City of Neligh, 155 Neb. 651, 53 N.W.2d 67 (1952). Voluntary or negligent absence of a party to the suit is not a ground for continuance. Kulhanek v. Kulhanek, 134 Neb. 349, 278 N.W. 563 (1938). Where pleading of party applying for continuance fails to disclose a meritorious cause of action or defense, continuance may be denied. Cornell v. Tuck, 104 Neb. 759, 178 N.W. 612 (1920). Nonattendance of witnesses subpoenaed by plaintiff when the trial commenced is not of itself sufficient ground for a continuance at the request of defendant who relied upon plaintiff's efforts to procure the attendance of such witnesses. Jackson v. Omaha & C. B. St. Ry. Co., 101 Neb. 456, 163 N.W. 838 (1917). Counter showing against motion for continuance is properly allowed. Dilley v. State, 97 Neb. 853, 151 N.W. 946 (1915). Absence of witness is not ground for continuance where testimony would have been inadmissible. Aegerter v. Ronspies, 97 Neb. 656, 150 N.W. 1019 (1915). Ordinarily failure to have witness subpoenaed and reliance on his promise to appear and testify shows lack of such diligence as requires a continuance in case the witness fails to keep his promise. Life Ins. Clearing Co. v. Altschuler, 55 Neb. 341, 75 N.W. 862 (1898). An appellate court will assess motions to continue a trial that do not fully comply with the rule governing requests for continuance in the broader context of the parties' substantial rights. State on behalf of Keegan M. v. Joshua M., 20 Neb. App. 411, 824 N.W.2d 383 (2012). An application for continuance shall state the grounds upon which the application is made and be supported by affidavits of persons competent to testify as witnesses in proof of and setting forth the facts upon which such continuance is asked. State v. Vela-Montes, 19 Neb. App. 378, 807 N.W.2d 544 (2011). The method by which the State sought a continuance, although not ideal under the requirements of this section, was not in itself a sufficient basis for finding error in the granting of the continuance. State v. Shipler, 17 Neb. App. 66, 758 N.W.2d 41 (2008). An application for a continuance must be in writing and supported by an affidavit which contains factual allegations demonstrating good cause or sufficient reason necessitating postponement of the proceedings. In re Interest of Azia B., 10 Neb. App. 124, 626 N.W.2d 602 (2001). The burden of showing an abuse of discretion in refusing a continuance is upon person who asserts it. Rhodes v. Houston, 258 F.Supp. 546 (D. Neb. 1966). 2. Discretion of court In determining whether a trial court has abused its discretion in refusing to grant a continuance, it is proper for the reviewing court to look at the entire record in the case. State v. Valdez, 239 Neb. 453, 476 N.W.2d 814 (1991). The failure to file a written motion for continuance supported by affidavit is a factor to be considered in determining whether a trial court abused its discretion in denying a continuance. State v. Santos, 238 Neb. 25, 468 N.W.2d 613 (1991). Generally, the denial of a motion for a continuance is a matter for the discretion of the trial court whose ruling will be upheld absent an abuse of discretion. State v. Perez, 235 Neb. 796, 457 N.W.2d 448 (1990). There is no abuse of discretion by the court in denying a request for a continuance unless it appears that the defendant suffered prejudice as a result of that denial. State v. Perez, 235 Neb. 796, 457 N.W.2d 448 (1990). Where a criminal defendant's motion for continuance is based upon the occurrence or nonoccurrence of events within the defendant's own control, denial of such motion generally is not abuse of discretion. State v. Perez, 235 Neb. 796, 457 N.W.2d 448 (1990). Failure to comply with the requirement that application for continuance shall be by written motion and supported by affidavits is relevant in determining whether the trial court abused its discretion in refusing to grant a continuance. State v. Carter, 226 Neb. 636, 413 N.W.2d 901 (1987). A situation in which a party moves to continue the testimony of a physician to the next day in order to permit a physical examination of the injured party, and in which the trial proceeds with testimony from other witnesses, does not amount to a continuance which would require a written motion supported by affidavit. Hoegerl v. Burt, 215 Neb. 752, 340 N.W.2d 428 (1983). A trial court may, in a proper case, order a continuance on its own motion and in the absence of a showing of abuse of discretion, its ruling on a motion for a continuance will not be disturbed on appeal. State v. Lee, 195 Neb. 348, 237 N.W.2d 880 (1976). A motion for continuance is addressed to the sound discretion of the court, and in the absence of a showing of an abuse of discretion, a ruling on a motion for continuance will not be disturbed on appeal. Korte v. Betzer, 193 Neb. 15, 225 N.W.2d 30 (1975). A denial of a party's motion for continuance of a hearing on a motion for new trial is not an abuse of sound legal discretion. Engel v. Mead, 191 Neb. 541, 216 N.W.2d 718 (1974). In the absence of a showing in conformance with this section, it is not error for the trial court to refuse to grant a continuance. Metschke v. Department of Motor Vehicles, 186 Neb. 197, 181 N.W.2d 843 (1970). Trial court may in a proper case order a continuance on its own motion. Waite v. State, 169 Neb. 113, 98 N.W.2d 688 (1959). Application for a continuance is addressed to the sound discretion of the trial court. O'Rourke v. State, 166 Neb. 866, 90 N.W.2d 820 (1958). The granting of a continuance rests in discretion of trial court. Cox v. State, 159 Neb. 811, 68 N.W.2d 497 (1955). In absence of showing of abuse of discretion, denial of continuance is not error. Hyslop v. State, 159 Neb. 802, 68 N.W.2d 698 (1955). Where parties agree to continue case beyond day set for trial, and default judgment is entered at request of party violating the agreement for continuance, it is abuse of discretion to overrule motion for new trial. National Cooperative Hail Assn. v. Doran Bros., 121 Neb. 746, 238 N.W. 527 (1931). There was no abuse of discretion in refusing continuance. Middaugh v. Chicago & N. W. Ry. Co., 114 Neb. 438, 208 N.W. 139 (1926). Refusal to grant continuance was abuse of discretion under circumstances of case. Richelieu v. Union P. R. R. Co., 97 Neb. 360, 149 N.W. 772 (1914). Noncompliance with the clear mandates of this section is merely a factor to be considered in determining whether the trial court abused its discretion in ruling upon a motion for continuance. State v. Vela-Montes, 19 Neb. App. 378, 807 N.W.2d 544 (2011). Courts may grant a continuance when the factual basis for granting the motion is wholly or largely dependent upon the oral statements of the prosecutor where the defense does not object to the procedure. State v. Roundtree, 11 Neb. App. 628, 658 N.W.2d 308 (2003). Failure to comply with this section is relevant as to whether the trial court abused its discretion. In re Interest of Azia B., 10 Neb. App. 124, 626 N.W.2d 602 (2001). 3. Miscellaneous Sua sponte judicial delays might be characterized as continuances by the court, but they are not "applications for continuances" as described by section 29-1206 and, accordingly, need not be in conformance with the requirements of this section, which describes a hearing on the application and the necessary form of support for applications for continuances or adjournment "made by a party or parties." State v. Chase, 310 Neb. 160, 964 N.W.2d 254 (2021). This section and section 29-1206 do not define whether a defendant's right to a speedy trial has been violated. State v. Turner, 252 Neb. 620, 564 N.W.2d 231 (1997).