Husted v. Williams

McOlaiN, J.—

The petition was filed in February, 1901, and in May of the same year a decree on default was rendered in' plaintiff’s favor. In July, 1902, defendants filed their motion for retrial, which was amended in September, 1903. On September 30, 1903, the defendants filed their answer to the original petition, and had entered of record their election to take testimony in the form of depositions, and thereupon moved for a continuance for that purpose. This motion was overruled, and the ruling is urged as error.

Defendants had the right, under Code, section 3652, to elect to take their evidence by depositions, and they were entitled to a reasonable time in which to do so. As depositions could not be taken during the pendency of the term of court (Code, section 4688), except by order of court, a continuance should have been granted, under Code, section 3663, for this purpose. Until issue was joined, defendants could not be required to prepare for the taking of depositions, and they were therefore not negligent in not sooner procuring their evidence, although a considerable time had elapsed after the filing of the motion to set aside default. Perhaps the defendants might have bad an order of court to take depositions pending the term, but there is nothing in the record to indicate that such permission, if secured, would have enabled them to take their depositions in time for trial of the case during the term.

The action of the trial court in refusing to grant a continuance was error, and the decree in favor of plaintiff is therefore reversed.