Mathews v. Willoughby

Blandford, Justice.

When this case was called in the court below, there was a motion by counsel for the plaintiff in error to continue, counsel stating in his place that he could not go to trial without the presence of his client — that his client was sick and unable to attend court; and he presented to the court an affidavit of a physician, which affidavit shows that, the day before the case-was called, he had visited the plaintiff in error, and that he had pneumonia and would be unable to attend court for the next five or six days. It was further shown, by another person who was in court, that he knew the plaintiff in error, and that he saw him on the morning the case was called, and that he was very sick and unable to come to court. A counter-showing was made, but neither the facts testified to by the physician, nor those testified to by the other witness, were shown to be untrue; but it was shown that on Friday or Saturday before the court met on Monday, the plaintiff in error was up and going, about, and that he went a short distance from his home. The court overruled the motion to continue, and to this the plaintiff in error excepted.

It was the right of the plaintiff in error to be present at the trial of his case, either to try the case himself, or to assist his counsel upon the trial. To refuse a continuance, under the facts of this case, was to deny him that privilege. His counsel had stated that his client’s presence was necessary, and that he could not go to trial without him. Underthe rule, he had merely to state that he could not safely go to trial; but the statement of counsel went beyond this, and showed not only that he could not safely go to trial, but that he could not go to trial at all. We know of no rule which requires counsel to state why it is necessary that his client should be present. The client has the right to be present to give his testimony, if it be admissible; to assist his counsel in striking a jury; and in any other way aid counsel if he think proper. For the reasons stated, we reverse the judgment of the court below and direct that a new trial be granted. Judgment reversed.