
    No. 1,538.
    Post v. Cecil.
    
      Continuance.—In Discretion of Gourt.—Abuse of Discretion.—JReversible Error.—An application for a continuance of a cause of action is addressed to the sound discretion of the court, and the decision of the court in such matter will be revised only where it has plainly abused its discretion. That the court abused its discretion in refusing continuance, on account of absence of defendant,.see opinion.
    Lotz, J., and Reinhakd, J., dissent.
    From the Boone Circuit Court.
    
      R. W. Harrison, for appellant.
    
      W. N. Harding and A. R. Hovey, for appellee.
   Davis, J.

This was an action for slander. The cause has been tried by a jury three times. After the return of the first verdict appellant was granted a new trial. On return of the second verdict application was made by appellee for a new trial, which was sustained. The last trial resulted in a verdict for appellee for four thousand dollars. Appellee entered a remittitur for two thousand five hundred dollars, and thereupon judgment was rendered against appellant for fifteen hundred dollars.

One of the errors assigned by appellant brings in review the action of the trial court in overruling his motion for a continuance. Just before entering upon the trial Robert W. Harrison, attorney for appellant, filed an affidavit and motion in behalf of appellant for a continuance of the case. It appears from this affidavit that appellant and his attorney had made due and diligent preparation for the trial of said cause on that day; that appellant “has a good and meritorious defense to the action herein, or at least that plaintiff’s recovery should be reduced to a mere nominal sum, if defendant were present in court;” that appellant was then suffering from a sudden and unexpected attack of lagrippe and neuralgia as the result of having been caught in a recent rain, on account of which he was unable on said day to leave his home at Indianapolis to attend said trial at Lebanon; “that the defendant is a witness in his own behalf in said cause and will testify, as affiant believes, as he has heretofore, that the matters and things alleged in the plaintiff’s complaint are untrue;” “that he can not safely go into the trial of the above entitled cause at this time on account of the absence of his client; ’ ’ ' 'that it would be impossible to go to trial in said cause without the aid and assistance of his said client. ” The illness of appellant and his inability to attend court were supported by appellant’s affidavit and the certificate of his attending physician.' It further appears in the affidavit for continuance, “that he believes the testimony and presence of his client can be procured if said cause, is continued until the next term of court;” “that this affidavit is not made for delay merely, but for the furtherance of justice.”

This application was addressed to the sound discretion of the trial court. It is true the statements in reference to his testimony and the necessity for his presence at the trial to aid and assist his counsel are not so full and specific as they might be, but the affidavit certainly shows a reasonable excuse for the absence of the appellant when the motion for continuance was made. It also shows in general terms that he was an important witness and that his aid and assistance were necessary during the trial. The affidavit discloses that appellant was the sole and only defendant in the action and that his presence at the trial was important, not only as a witness, but also as a party to aid and assist his counsel. There is nothing in the record indicating that the facts stated in the affidavit were not true or that the application was not made in good faith. The action was for slander. The' slanderous words alleged to have been spoken grew out of a quarrel on account of a small item of indebtedness between the parties. The circumstances were such that it was desirable that both parties should be seen and heard by the jury if practicable. An examination of the affidavit in connection with the entire record convinces us that in the exercise of a proper judicial discretion the court below ought to have continued the cause, and that it erred in refusing to do so.

An appellate court is reluctant to revise the decision of the trial court in cases like this which rest in their discretion, but under the circumstances disclosed by the record in this particular case we are of the opinion that such revision is both necessary and proper in order that justice may be fairly and impartially administered between the parties. We express no opinion as to the merits of the controversy. There may, however, be mitigation without justification, and both parties should have a reasonable opportunity to present their respective theories of the transaction fairly to an impartial jury. Welcome v. Boswell, 54 Ind. 297.

Filed Dec. 19, 1894.

Judgment reversed, -with instructions to grant appellant’s motion for a new trial.

Dissenting Opinion.

Lotz, J.

I do not concur in the opinion of the majority. A motion for a continuance is addressed to the sound discretion of the trial court, and. a judgment should not be reversed on account of a ruling thereon unless it very clearly appears that this discretion has been abused or erroneously exercised. Moulder v. Kempff, 115 Ind. 459.

The presumptions are in favor of the action of the court in reference to such ruling, and no reversal should be ordered unless it be affirmatively shown that the ruling was wrong. Pate, Exr., v. Tait, 72 Ind. 450.

It is true that it is an important privilege for a party to the action to be present at the time of the trial. His counsel often stands in need of his aid and advice. This privilege ought not be denied except for weighty reasons. He stands in a different attitude from that of an ordinary witness. Welcome v. Boswell, 54 Ind. 297.

His absence may be, but is not necessarily, a cause for a continuance. When a continuance is sought on account of the absence of a party, the necessity for his presence should be clearly made to appear. If his counsel is not familiar with the cause or with the evidence, nor acquainted with the witnesses, such facts should be shown.

It has been expressly decided by the Supreme Court that an affidavit for a continuance on account of the inability of a party to be present at the trial, must show that it was necessary that he should be personally present at the trial in order that he might advise and confer with his counsel during the progress of the trial. Fisse v. Katzentine, 93 Ind. 490 (494).

The statement contained in the affidavit in this case, “that it would be impossible to go to trial * * * without the aid and assistance of his client, ’ ’ is but a conclusion, and not the statement of a fact. Nor are any facts stated from which such conclusion can be drawn. It is readily conceivable how a cause may proceed to trial without the presence of a party, and such trials often occur in actual practice. His presence is not a necessity as a matter of course. It is true that the nature and character of the action may have something to do with the necessity of a party’s presence. But if we may look into the whole record, the words alleged to have been spoken, if spoken at all, were uttered in a public place in the presence of a large number of witnesses, some of whom knew as much about the case as the appellant himself, and who were present at the trial and from ■whom the counsel could have obtained the- necessary information and aid. I am of the opinion that the affidavit fails to show a necessity for the presence of the appellant at the trial; nor was the affidavit sufficient on account of the absence of the appellant as a witness. For aught that appears the same evidence could have been obtained from other witnesses.

Reinhakd, J., concurs in the dissenting opinion of Lotz, J.

Filed Dec. 19, 1894.  