Gilmore v. Wright

By the Court.

Benning, J.

delivering the opinion.

The showing for a continuance was hardly sufficient. It. has been usual in such cases, to require of the Attorney to. say, that he could not safely go to trial in the absence of his client. The Attorney’s statement, that he is not as well prepared for trial as he would be if his client were present, is-hardly equivalent to this. We therefore leave the decision of the Court, as to the continuance, undisturbed.

We think, however, that the Court erred in its charge to the Jury. It will not do to assume that every appeal, which goes to the Jury without evidence, is frivolous and intended for delay only. If a man, acting on the advice of his lawyer, that his defence is a good one, enters an appeal, the appeal is not frivolous or intended for delay only, although the Court, when its opinion comes to be taken, may strike out ■the defence. And yet, in such a case, no evidence gets to the Jury. So, a showing for a continuance may itself dis•close matters making it apparent that the appeal was not frivolous or intended for delay only. An appeal has to be both to be a case for damages.

We think that on the question, whether an appeal is frivolous and intended for delay only or not, every thing connected with the case, including the conduct of the appellant and his Attorney, is matter proper for consideration. If we are right in this, it is not true that a failure on the part of an appellant to submit evidence to the Jury in support of some legal defence, is, of itself, conclusive to show his appeal frivolous and intended for delay only. But it was a failure to do 'this Ayhich the Court, in effect, told the Jury was conclusive to show the appeal, in this case, frivolous and intended for delay only.

We think, therefore, that in this charge the Court erred;, and consequently, that there ought to be a new trial.