Waxelbaum Co. v. Atlantic Coast Line Railroad , 3 Ga. App. 394 ( 1908 )

Eussell, J.

(After stating the foregoing facts.) Applications for continuances are addressed to the* sound legal discretion of the trial judge, and that discretion will not be interfered with unless it is abused. The defendant objected strongly to the temporary continuance from May 24 to June 8, which was granted by 'the court for the purpose of enabling the plaintiff to see if it could find evidence sufficient to overcome that adduced by the defendant, but it did not preserve its exceptions by excepting, and consequently this ruling is not before us for review. While we are not required to rule that the court abused its discretion in passing the case at that time, certain it is that if the court had then proceeded with the case it would not have been an abuse of discretion. However that may be, the court, having taken recess and temporarily continued the case, properly or improperly, until Saturday June 8, should at that time have granted a further continuance, in view of the showing made. Mr. Jones, as appears from the Record, alone conducted the case in behalf of the plaintiff during the trial, lasting two days, before the recess was taken. Upon the day set for the resumption of the trial, he was actually engaged in the argument of cases before the Supreme Court. He could not be at both places, and his place in the trial in the city ■court of Albany could not be supplied by^ any one else, who would necessarily be unfamiliar with what had already transpired on the trial. If the trial had never begun, his client would have been entitled to his presence, and his absence would have been good ground for continuance. His presence was more important when the case was to be resumed and had been partially tried than if the trial had not been begun. It rests in the knowledge •of every practitioner that counsel brought into a case partly tried, and who has heard nothing of what has transpired, especially if the case has been practically completed so far as evidence is concerned, labors under a great disadvantage. Where the sole counsel in a case is in attendance and actually engaged in the Supreme Court or the Court of Appeals, his absence from a superior court or a city court or any other inferior court is a good ground of continuance. And when it is made to appear, as in' this case, that the absence of such counsel is due to his engagement in the Supreme Court or the Court of Appeals, and that thereby a conflict of duties has arisen, the appellate courts having precedence, the duty there must prevail, and the cause of such counsel in the lower court, in which such showing appears, should be continued.

Holding, as we do, that this case should have been continued, it necessarily follows that a mistrial should not have been denied; ■and it becomes immaterial for us to discuss whether the court erred, under the evidence then before him, in granting a nonsuit. Counsel for the plaintiff had the right to be heard upon that, as upon any other judgment asked at the hands of the court, and more especially where the case had been passed for the express purpose of allowing his client to supplement, if he could, his evidence upon a point which he had not anticipated. ■ Judgment reversed.