Hopkins v. Laplace , 14 La. 141 ( 1839 )

Martin, J.,

delivered the opinion of the court.

The appellant complains of the refusal of the judge of Probates to grant him a continuance. He had filed his tableau of distribution, the homologation of which was opposed by the present appellees. They resisted his application, made on the ground of the indisposition of his attorney, by showing that the case had been continued three times on the allegation of the same cause ; and by showing that the appellant had two other attorneys on the record, and that still other attorneys might be had. After overruling the motion for a continuance, the court, on the plaintiff’s motion, continued the cause, from day to day, for a week, in order to afford an opportunity to the appellant to avail himself of the services of an attorney then absent attending court, and was expected daily to arrive. At the end of the week, this gentleman not having arrived, and the other attorney of the appellant being out of town, the trial of the cause was proceeded in.

The granting of a continuance is in the discretion of the judge, and it was once questioned whether this court could inquire into and relieve a suitor who showed that this discretion had not been correctly exercised. We held that we could. Broussard vs. Trahan’s heirs, 4 Martin, 489.

The inferior judge has peculiar advantages over us, in deciding on the propriety of granting such motions. He best knows the parties and their attorneys; has better opportunities to examine their conduct, especially in a case which is long pending‘before him. This court has no advantage over the inferior tribunals, but in the number of its members.

The present case appears to us to be one in which the discretion of the judge was evidently exercised correctly. The appellant had three counsel on record ; the indisposition of one of them had been protracted for three months, during which as many continuances had been granted. On according the first, the judge had declared that he would not grant another, unless a better cause was shown; yet the appellant obtained two others, and afterwards a postponement of the trial, from day to day, during the week. It is impossible for us to resist the impression that, if due diligence had been exercised, the appellant might have availed himself of the services of one of his two other attorneys on record, or of some other gentleman of the bar. It is sworn that there were two attorneys in town, and others could have been had by sending* to Alexandria.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be affirmed, with costs.