Kyger v. Koerper ( 1946 )

I concur in the opinion of Leedy, J. that it was proper to enforce prohibition under the circumstances of this case. There was no question raised as to the validity of Section 96 of the Civil Code (Sec. 847.96 Mo. Stat. Ann.); and the sufficiency of the application and affidavit for continuance was admitted. However, if we are to continue to apply the drastic remedy of prohibition to rulings on applications for continuance under this statute, I think there should be some further consideration of the question of the construction and meaning of the requirements of this section.

[4] This statute says: "When the general assembly is in session, it shall be a sufficient cause for a continuance if itshall appear to the court, by affidavit, that any party applying for such continuance, or any attorney, solicitor or counsel of such party is a member of either house of the general assembly, and in actual attendance on the session of the same, and that the attendance of such party, attorney, solicitor or counsel is necessary to a fair and proper trial or other proceedings in such suit."

I do not think that it can properly be held that the conclusion "that the attendance of such party, attorney, solicitor or counsel is necessary to a fair and proper trial" does "appear to the court," merely when this statutory language is written into an affidavit. I think that this section must be read and construed in connection with Section 93 which says: "Every application . . . shall . . . be . . . accompanied by an affidavit . . . setting forth the facts on which the application is founded." This surely does not mean conclusions which the court must reach in order to find that the applicant is entitled to a continuance. Such a construction would transfer the judicial discretion of the courts to litigants, or their counsel, and make the matter of a continuance depend upon their mere whim or desire.

The rule is stated in 17 C.J.S. 259, sec. 94, that "in stating the grounds on which a continuance is asked, the affidavit should set forth facts constituting such grounds, and mere conclusions are insufficient." [See also 12 Am. Jur. 472, sec. 31; Gregory v. Hansen (Mo. App.), 224 S.W. 82.] Therefore, I think that the meaning of Section 96 (in saying a party has sufficient cause for a continuance "if it shall appear to the court . . . that the attendance of such party, attorney, solicitor or counsel is necessary to a fair and proper trial") necessarily must be that the affidavit must state facts which would support such a finding and from which the court could reach such a conclusion. I think that State v. Myers, 352 Mo. 735, 179 S.W.2d 72, making a contrary construction should be overruled.

[5] I think that any other construction would make this statute unconstitutional. We have held that an act which arbitrarily imposes an unreasonable or unnecessary delay upon the administration of justice would be contrary to Section 10, Article II, Const. of 1875, now Section 14, Article I, Const. of[949] 1945. [Kristanik v. Chevrolet Motor Co., 335 Mo. 60,70 S.W.2d 890.] Also as stated 16 C.J.S. 329, sec. 128, the Legislature cannot entirely exclude the exercise of the discretion of the Court. To do so is an encroachment of one department of Government upon the functions of another, prohibited by Article III, Const. of 1875, now Article II, Const. of 1945.

Section 96 provides for a complete moratorium (except during periods of adjournment of 20 days or more) on all proceedings in any pending case during the sessions of the General Assembly (which may be continuous under the new constitution throughout the whole period of each biennium) on the application of any party or attorney therein who is a member. It very properly states certain facts which must be shown by affidavit but does include the one matter (necessity of attendance to a fair and proper trial) which can only be a conclusion. If the Court is not permitted to determine this issue, which it could only do from a consideration of some facts about the case and the situation of the parties and attorneys, then its decision is arbitrarily compelled merely by the conclusion stated by the party making the affidavit regardless of what justice to others may require. Such a construction takes away all the judicial function of the court in making continuances applied for under this section.

Certainly litigants and lawyers who are members of the General Assembly should be given every reasonable consideration and their rights carefully protected by the Courts. They have duties as important as any in our Government; and they are required to perform them away from their homes at great personal sacrifice of both time any money because of inadequate compensation. This court has demonstrated that it will protect their rights by prohibition if necessary. However, our constitution requires the courts to protect the rights of all parties (especially to see that "justice shall be administered without. . . . denial or delay"); and there can be abuse of this continuance statute (although such instances are very rare) if it is construed to compel an indefinite continuance in every case under all circumstances. I do not think it should be so construed. Clark, Douglas andEllison, JJ., concur.