Darracott v. Penington , 34 Ga. 388 ( 1866 )

Harris, J.

The facts in this ease are of a peculiar kind, and, when considered with reference to the wide range of judicial discretion over continuances, the nature and objects of law-partnerships, and, especially, the then actual condition of Georgia, we think our assiduous brother of the Pataula Circuit ought to have controlled the very common eagerness of a party to try his case when he discovers he has, from some fortuitous cause, gotten an advantage over his adversary.

This case was in the last resort: the counsel of the plaintiff below, Mr. Davis, he who brought it and conducted it throughout, and who had attended the Court in wliiph the case was pending, was, at the time it was pressed for trial, in the military service of the Confederacy. His law partner, Mr. Yason, at no time attended the Court where the suit was pending;. he was unknown to the Judge .or balas a practitioner there. Mr. Davis, by statute, if he had had no partner, was ’ entitled to his case being' continued. Why should the fact of having a partner deprive him of a legal right, when that partner was in no sense an officer of that Court ?

[1.] Law partnerships differ, in many respects, from general partnerships: by their nature, they are limited, and are usually formed, and so understood by the country, with a view to conducting business over a wider space, each member attending some Court in contiguous circuits at the same time; thus rendering it utterly impracticable, if one should be sick or detained by sufficient cause, for the other to supply his place, without detriment to his clients in another Court in which he regularly practices. In the - existence of such a state of things, surely our brethren of the circuit bench are invested with discretion enough to protect suitors' against injury which they could not foresee, or remedy. Hence, we think the Court below should haye looked to Mr. Davis’s absence alone, and if there was a satisfactory reason why he could not be in bis place at the bar, to have continued the case.

[2.] We do not, however, place the reversal of the judgment dismissing plaintiff’s suit upon what has been said, but that the then condition of the Western and South-western portion of the State was such as to excuse all persons, Judge, jurors, parties, witnesses, and attorneys, from attendance. War was existing. At the very hour that Court was being held, a Federal army of sixteen thousand men, under Gen. Wilson, was in possession of the city of Columbus, which had been captured after an ineffectual resistance. This army was of mounted men. They were moving with rapidity on Macon — a portion above, a part below Columbus. They spread over a wide extent of country, inspiring terror, and meeting with no resistance. War raged every where: there was no personal security — travel broken up — one could scarce look within his horizon by day, without seeing the ascending column of smoke, or at night, the lurid ñames of the burning dwellings or_ gin houses of our people. The militia from sixteen to sixty years of age, had been called into the field' by the proclamation of the Governor. That proclamation was a call upon all to stand by their arms. This was no time for the transaction of business calmly in Court. The necessity of the hour required our people not in the military service, to look to the security of their, families, and the preservation of as much of their property as practicable.

[3.] And, whilst we highly commend the sense ofv official duty which led our brother to keep his Court open to the last moment, until the Confederate cause was overwhelmed, we cannot but think that, in this case, the ordinary rules governing continuances of causes were too stringently enforced ; and, therefore, direct this case to be re-instated.