York v. Steward , 30 Mont. 363 ( 1904 )

Mr. CHIEF JUSTICERRANTLY

delivered the opinion, of the court.

This action was brought by the plaintiff to recover a judgment against the defendants' for a balance alleged to be due the plaintiff for rent of certain premises in the city of Butte. The plaintiff had verdict and judgment. The defendants have appealed.

On April 26, 1902, the calendar was called by the district court of Silver Bow county for the purpose of setting causes for trial. At that time this cause was set for hearing on May 5th following. When this day was fixed, J.olm W. Cotter, Esq., one of coimsel for defendants, asked the court to set the cause at a date later than May 7th; the reason for his request being that he would be obliged to be in attendance upon the supreme court of the state of Montana on May 5th, 6th and 7th, and could not be present in person to try the cause at an earlier date than May 8th. This request the court refused to grant in the absence of a showing made by counsel by affidavit. On April 30th Mr. Cotter presented and filed his affidavit, and moved the court for a continuance of the cause until after May 7th. After consideration, the motion wras denied. The only error assigned in the brief of counsel is the action of the court in refusing the application for a continuance. The affidavit, omitting the formal parts, is the following: “John W. Cotter, being-first duly sworn, deposes and says that he is attorney for the defendant in the above-entitled cause, and was such attorney in 'said cause on the former trial thereof, and represented the said defendant on the appeal thereof in t-lie supreme court.; that said court reversed the judgment which had heretofore been obtained by the plaintiff against the said defendant, said cause having-been tried before Honorable John J. McHatton, judge presiding in Department 1 of the district court at that time; that this affiant is the only person connected with the case who is qualified to represent the defendant, and that he is obliged to be in attendance upon the supreme court of the state of Montana on Monday, the 5th day of May, Tuesday, the 6th day of May, and Wednesday, the 7th day of May, and that he cannot be present and try the said cause at the time it is set; that he called the matter of his being required to. appear before the supreme court to the attention of this honorable court at the time this cause was set, and was notified by said court to make a showing of such attendance. * * *”

It appears elsewhere in the record that there were associated in the cause with the counsel who made the application John J. McHatton and George F. Shelton. It appears further that Mr. Shelton attended the trial, and acted as counsel for the defendants. It further appears that Messrs. MeHatton and Cotter were associated in a copartnership as attorneys and counselors. So far as the affidavit shows to the contrary, Mr. Mc-Hatton was as well qualified to attend to the business pending in the supreme court as was Mr. Cotter himself, and was at liberty to do soj for there is no* statement that the business pending there was of such a character as to demand the personal presence of Mr. Cotter. And while1 Mr. McHatton could not properly appear and try the cause in the district courts for the reason that he had at one time sat as judge in the cause, yet he could with propriety have relieved Mr. Cotter from the necessity of attending the supreme court, and allowed him to give his personal attention in aid of Mx*. Shelton at the trial. Nor does it. appear that Mr. Shelton was not as well qualified to attend to the trial as was Mi*. Cotter; and, though it does appear that Mr. Cotter would have preferred to be present and try the cause, from the fact that he had been associated with it from the beginning, the affidavit fails to reveal any legal reason why the court erred in setting the cause and requiring the trial to be had as. it did. The appeal is without merit.

The judgment is affirmed.

Affirmed.