Birdsong v. Polinsky , 1914 Pa. Super. LEXIS 340 ( 1914 )

Opinion by

Rice, P. J.,

It is not claimed that this cause was not at issue, or that it was not regularly on the trial list or that it was not regularly reached for trial, or that any legal reason for a continuance of the case or a postponement of the trial existed. What is claimed is that the counsel for the defendant after investigation concluded that owing to the number of cases remaining open on the trial list the case “would probably not be reached until late in the day.” Acting on that supposition 'he advised his client that he would notify him by telephone whether the case would be tried in the forenoon or the afternoon and that he should be in readiness to come to court immediately upon receiving such notice. But the case was reached earlier than he expected—a thing which every practicing lawyer knows is likely to happen and which the defendant and his attorney must be deemed to have taken the chance of happening. The postponement of the trial under such circumstances would have been a pure act of grace on the part of the court. To hold that the refusal to grant it was an abuse of discretion would be unjustifiable in principle and would be a precedent tending to hamper trial courts in the exercise of the powers and discretion which are wisely vested in them and which it is necessary that they shall have in order to forward the prompt and orderly administration of justice. The case is plainly distinguishable from Epstein v. Insurance Company of North America, 245 Pa. 132, and from every other case that can be found in the reports where a trial court has been reversed for refusing an application to continue a case or postpone the trial.

The assignments of error are overruled and the judgment is affirmed.