
    LANCINO v. SMITH et al.
    No. 2043.
    Decided November 3, 1909.
    On Application for Rehearing January 4, 1910
    (105 Pac. 914).
    1. Continúan ce — Second .Continuance — Discretion oe Court. Under Comp. Laws 1907, section 3133, authorizing a continuance for the absence of evidence only on affidavit showing the materiality of the absent evidence, and the use of diligence to procure it, there is no abuse of discretion in refusing a second continuance on the mere oral statement of an attorney, who was in the office with defendants’ attorneys, but not an attorney of record in the case, that the same grounds, which was the absence of one of defendants who was the principal witness, exist as existed when the former continuance was granted, and that it is impossible for such witness to be present. (Page 467.)
    
      2. Appeal and Error — Review-—Discretion op Court — Rulinos on Motion por Continuance. The denial of a motion for a continuance for the absence of evidence will not be disturbed on appeal, in the absence of an abuse of the court’s discretion. (Page 467.)
    3. Appeal and Error — Review—Discretion op Court — Rulings on Motion por New Trial. In the absence of an abuse of discretion, the denial of a motion for a new trial will not be disturbed on review. (Page 468.)
    Appeal from District Court, Third District; Hon. T. D. Lewis, Judge.
    Action by John Lancino against Bert L. Smith and another.
    Plaintiff had judgment against defendant Smith, from which, and an order denying a motion for new trial, said defendant appealed.
    Aeeiemed.
    
      Diclcson, Ellis,, Ellis & Schulder for appellant. *
    Edwards, Smith & Price for respondent.
   PRICK, J.

The complaint in this action was filed in August, 190Y, and the answer thereto in September following. On the 3d day of February, 1908, the case being regularly on the trial calendar, it was set to be tried on April 2, 1908. On the 31st day of March, by consent of the attorneys for both parties, the trial was postponed to April 10, 1908. At said time, when the case was again reached in its order, the attorneys for the defendants filed a motion, supported by an affidavit, to continue the case. The affidavit, which .was made by one of the attorneys, in substance contained the following statement of facts: That the defendant Bert L. Smith lived in the state of Nevada, and that he knew nothing concerning the facts involved in the ease; that the other defendant, Peter .Porter, ever since the case was first set down for trial bas been and now is in Kansas City, Missouri, on important business; that for the three months immediately preceding said 10th day of April said Porter had been expected to come home to Salt Lake City, but was unexpectedly detained in said Kansas City, and that if it had been known to affiant that said Porter would not come home at or before the date the case’ was set down for trial his deposition would have been taken; that affiant was unable to state with any degree of accuracy the facts to which said Porter would testify, because the attorney making the affidavit did not have the case in charge, and Was not conversant with the facts nor with what the witness knew concerning them; that the ease was particularly in charge of his partner, who at the time, as affiant was informed and alleged, was in California with his sick child; that affiant was informed and believed that the defendants had a meritorious defense to the action; that they could not safely proceed to trial' at that time, and that if they were compelled to proceed to trial “gross injustice would be done.” Upon substantially the foregoing facts counsel asked that the case be continued “until some future date,” when said Porter could be in attendance or his deposition could be taken. Upon the showing aforesaid the court postponed the trial to the 16th day of April following. On said day, when the case was again called for trial in its order, Mr. Buckle, who was in the office with defendants’ attorneys, but not an attorney of record in the case, renewed the former motion to continue the case. In this connection Mr. Buckle said: “I will state that the same grounds exist today as existed at that time [when the original motion and affidavit were filed], and that we have telegraphed Mr. Porter at Kansas City, Missouri, and he answers that it is absolutely impossible for him to1 be here, and we ask for a continuance upoh the grounds as stated in the affidavit of last week, and the further ground that it is. impossible for the defendant Porter, who is the principal witness, to be here.” Plaintiff’s counsel resisted the motion, and the court said: “Of course the court cannot tell anything from that. There should be a proper affidavit filed. A mere statement of that kind is not ground for a continuance. Tbe motion for a continuance will be denied.” When this ruling was made Mr. Buckle announced that defendants’ attorneys.. desired to withdraw from tbe case, to wbicb plaintiff’s counsel objected “if tbe withdrawal will result in a continuance.” Tbe court announced that be would not permit counsel’s withdrawal to have such an effect, and directed plaintiff’s attorney to proceed with tbe trial of tbe case, wbicb was done in tbe absence of both defendants. After bearing tbe evidence adduced by plaintiff, tbe court ordered tbe action dismissed as against tbe defendant Porter, but ordered judgment in plaintiff’s favor for tbe amount claimed by him against Bert L. Smith. Tbe defendant Smith, upon being informed of tbe judgment against him, employed tbe counsel who now appear for him, and who, in proper time, filed a motion to set aside tbe judgment entered against said Smith upon various grounds, tbe principal one' of wbicb is that tbe court erred in refusing to grant tbe continuance asked for on tbe 16th day of April, 1908, by tbe attorneys who then represented said Smith. The foregoing motion was supported by affidavits, in which all tbe foregoing facts, among others, are set forth. It is also made to appear in support of tbe motion to set aside tbe judgment that tbe plaintiff herein, in September, 1906, bad commenced an action against tbe Cluster Mining Company, a corporation, and the defendant Bert L. Smith to recover judgment for tbe same claim for which judgment was rendered against tbe defendant Smith in this case. In said action if was shown that tbe Cluster Mining Company was tbe owner of tbe mining claim upon wbicb plaintiff performed tbe labor for wbicb be was seeking to recover payment, and that tbe defendant Smith was tbe lessee of said claim; that tbe court, after bearing tbe evidence in that case, sustained a motion for nonsuit in favor of said mining company, whereupon tbe plaintiff voluntarily dismissed the action as against tbe defendant Smith. Tbe present action was commenced some time after the first action had terminated as aforesaid. Evidence which was adduced by the parties upon the hearing of the former, as well as upon the hearing of the later case, is also made a part of the record on this appeal. The principal question, however, is, did the district court err in refusing to grant the continuance referred to, the other matters being merely incidental to that question ?

All' agree that error in this cas.e can be predicated only upon an abuse of discretion by the court in refusing to grant the continuance asked for. Section 3133, Comp: Laws 1907, so far as material here, provides:

“A motion to postpone a trial on tlie ground of the absence of evidence can only be made upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to procure it; . . . and upon terms, the court may, in its discretion, upon good cause shown, postpone a trial or proceeding upon other grounds than absence of evidence.”

Were the provisions of this section sufficiently complied with so that in reviewing the action of the trial court we can say that the court abused the discretion vested in it with respect to the granting or refusal of a continuance ? It will be observed that no affidavit was filed in support of the second motion- to postpone the trial. All that was before the court was the statement of an attorney who, at the time, appeared for both of the defendants Smith and Porter, but who, in so far as the record discloses, was not an attorney of record in the ease. The statement, therefore, so far as the record shows, was not even made by an attorney representing the parties and was not under oath. The former affidavit was made by an attorney of record. That affidavit had, however, spent its force, and if it was desired that it do double service it should, in justice to both the plaintiff and the court, at least have been supplemented by the oath of someone who knew, and stated that the conditions set forth in the affidavit continued the same as they were therein represented to be when it was filed. If this had been done the court would at least have had something tangible before it upon which it might have exercised its judgment whether tbe diligence referred to- in tbe statute, bad been used or not to entitle tbe moving party to tbe postponement of tbe trial asked for. Tbe court seemed to entertain tbe view, and we are not prepared to say tbat it was wholly unjustified, tbat there was nothing before tbe court to pass upon, and hence tbe only proper thing to do was to proceed with tbe trial of tbe case. While it is true tbat in view of tbe statute tbe court bad the discretionary power to postpone tbe trial upon other grounds, yet tbe record in this case does not present a case where we can say tbat the court clearly abused its discretion in not postponing tbe trial upon such other grounds. Tbe right and power to postpone trials for cause, and to regulate tbe business of trial courts by tbe courts themselves so as to sub-serve public as well as private interests, must, in tbe nature of things, to a very large extent at.least, be left to' their sound discretion. Taking this record as a sample, if, judging from it alone, we were called upon to say whether in our judgment tbe court should "have granted a postponement of tbe trial in view of tbe facts disclosed, we might be greatly inclined to tbe view tbat tbe court should have done so; yet this is far from saying tbat we would be justified in bolding tbat tbe trial court abused tbe discretion vested in it by law, and unless we can say tbat it is clear tbat it did, then its judgment and not ours must prevail. Where tbe ruling presented for review merely involves a question whether tbe trial court disregarded or failed to- correctly interpret some statute or positive rule of law, we can ordinarily readily determine whether tbe court committed prejudicial error in tbe ruling complained' of or not; but where tbe ruling is one which involves tbe duty of tbe trial court to exercise a sound discretion tbe question presented is different. In tbe latter ease we ought not disturb tbe ruling of tbe trial court unless we are clearly convinced tbat tbat court has abused tbe discretion with which tbe law has vested it. In view of tbe entire record we are not prepared to say tbat tbe district court abused its discretion in refusing to postpone tbe trial of tbe case.

Tbe alleged error that the court erred in not setting aside the judgment for the reasons assigned must fail for the same reasons that the assignment just passed upon failed. Whether, in view of all' the circumstances, the court should have given the defendant Smith another opportunity to try the case upon its merits also involved matters which were addressed to the sound discretion of the trial court. Whether plaintiff should be paid by the Cluster Mining Company, or by Mr. Smith, or by anyone else for the work, which no one seems to dispute was done by plaintiff, was the real question in those cases. All the evidence adduced in both eases at both trials was before the court. In addition to this, defendants’, as well as plaintiff’s, affidavits with respect to any additional facts were also before the court. The court, in considering all the facts and circumstances before it, arrived at the conclusion that the judgment ought not to be set aside, and we are not prepared to say that any substantial right of the appellant has been invaded or disregarded.

It follows that the judgment should be, and it accordingly is, affirmed, with costs to' respondent.

STKAUP, C. J., and McCARTY, I., concur.

ON APPLICATION FOR REHEARING.

PRICK, J.

Counsel for appellant, Bert L. Smith, have filed a petition for rehearing. They earnestly contend that the original opinion filed in this case is contrary to the decision in the case of Utah Commercial Bank v. Trumbo, 17 Utah 198, 53 Pac. 1033. In other words, they contend that the decision in the case at bar, in effect, overrules the former decision. If counsel are correct in this contention, then they are also correct in their statement that both decisions cannot stand, and the former should, in terms, be overruled or modified so that the bar might be advised of the state of the law in this jurisdiction in so far as the same is controlled by tbe decision of tbis court upon tbe question in issue. At tbe time we wrote tbe opinion in tbis case we did not think the Trumbo Case was in point, because the facts in that case and those in the case at bar, and the grounds upon which the motions in the two cases were based, were entirely different. In tbe former case tbe defendant was in default for want of an answer. In tbe case at bar tbe principal question turned upon tbe refusal of tbe trial court to postpone tbe trial to some future time after tbe case bad been at issue for months, and bad been regularly set for trial at least twice before tbe application to continue was made, upon which tbe alleged error of tbe trial court is based. In tbe Trumbo Case tbe defendant was not within tbe state of 'Utah when tbe summons was served upon him by leaving a copy thereof at bis usual place of residence. He never bad an opportunity to advise counsel who appeared for him of tbe facts constituting bis defense, and they were thus unable to file an answer to tbe cause of action set forth in tbe complaint. Tbe defendant in that case was in a distant state, and not in a place where be could be communicated with by tbe ordinary and regular means of communication until after default bad been entered and judgment taken against him. It was under such circumstances that tbis court held that the trial court bad abused its discretion in refusing to set aside the default in that case. In that case there was no lack of diligence, either by tbe attorneys, or by tbe defendant. In the case at bar tbe trial court was justified in bolding that neither tbe appellant, nor bis attorneys, bad shown due diligence, in view of tbe facts stated in tbe opinion. In the Trumbo Case both the defendant and tbe attorneys who attempted to appear for him were* helpless, because they were unable to communicate with one another so as to prepare a defense. In tbis case there was ample opportunity to do so. Tbe case was at issue, regularly set down for trial, and once postponed before tbe second application for postponement was made and denied. Tbe second denial was based upon tbe ground that defendants’ counsel bad not shown due diligence. Under such circumstances we cannot see any parallel between the Trumbo Case and the case at bar.

The application for rehearing is therefore denied.

STRAUP, C. J., and MoCARTY, J., concur.  