Defendant demurred to the notice on the ground that it was insufficient in that plaintiff failed to file an account as required by section 8-720 of the Code of 1950. No itemized account was attached to the notice or filed but there was attached and made a part of the motion an affidavit by the plaintiff's president in which it was alleged that defendant was indebted to the plaintiff in the specified amount for work and labor done and for materials furnished pursuant to verbal agreement with defendant. Under the facts of headnote 2, plaintiff corporation alleged in its motion for judgment that defendant was indebted to it in a given sum, with interest, upon an open account. The evidence tending to prove that defendant was too ill to attend court was not positive or convincing and in considering the record as presented it could not be said that the trial court abused its discretion in refusing to continue the case.Ĩ. When the trial court granted defendant's motion for continuance on December 17, it doubted defendant's diligence in preparing for trial and took the unusual precaution of personally notifying her that if there was a possibility of her being unable to be present on January 9, she should have her deposition taken and filed, which suggestion defendant ignored. Under the facts of headnote 2, when the case was called for trial on January 9, counsel for defendant contended that defendant was physically unable to be present and read a certificate signed by a doctor, who had not made a personal examination of defendant, stating that in his opinion it was inadvisable for defendant to appear in court. There can be no fair and impartial trial unless a party has had an opportunity to appear and be heard on any issue which affects his rights.ħ. If a continuance is requested because a party's absence is due to illness, the fact of such illness should be established by positive evidence that satisfies the court of the inability of the party to be present.Ħ. A litigant not only has a right to be present at the trial, but it is presumed that he will be present for the purpose of aiding and assisting in the protection of his rights however, he forfeits this privilege or right when it appears that his absence is for the purpose of forcing a continuance which tends to hinder and delay the orderly and expeditious administration of justice.ĥ. A motion for continuance is addressed to the sound discretion of the trial court, and its ruling thereon will not be disturbed by the Supreme Court of Appeals unless it plainly appears that its discretion has been abused since the presiding judge observes and knows the surrounding facts and circumstances, and hence is in a better position than an appellate court to determine whether the design of the party making the motion is delay, or whether the continuance is essential to a fair and impartial trial.Ĥ. Under the circumstances, defendant's failure to employ counsel until three days before the date fixed for the trial was not the exercise of due diligence and the trial court did not abuse its discretion in refusing a continuance on that ground.ģ. When the case was called for trial, counsel for defendant appeared and after having had a demurrer overruled, moved for a continuance on the grounds that he was not employed until January 6 which afforded insufficient time to prepare for trial. Action was brought against defendant and December 21 was set as the date for trial, but on December 17 counsel for defendant informed the court that he had notified defendant he would not represent her, that she was ill, and requested a continuance which was granted upon condition, of which defendant was notified by the court, that she employ other counsel forthwith. Mere failure of a litigant to employ counsel until just prior to the date set for trial or withdrawal or discharge of counsel under the same circumstances are not grounds for continuance.Ģ. Present, Hudgins, C.J., and Eggleston, Spratley, Buchanan and Miller, JJ.ġ.
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