
    Robert Nichols, Respondent, v. The Headley Grocer Company, Appellant.
    St. Louis Court of Appeals,
    April 21, 1896.
    1. Practice, Appellate: refusal of continuance by trial court. While the granting or refusal of an application for a continuance i& to a great extent within the discretion of the trial court, still the discretion is judicial in its character and subject to review on appeal. And where a party uses due diligence to procure material testimony and fails, and the trial court nevertheless refuses to grant him a continuance on proper application therefor, such action of the eourt is ground, on appeal, for the reversal of the judgment.
    2. -: -; WAIVER OF NECESSITY FOR FORMAL APPLICATION. A party who applies for a continuance need not present a formal application therefor, when he is informed by the trial court in advance that it would be useless for him to do so.
    
      Appeal from the Lawrence Circuit Court. — Hon. J. 0» Lamson, Judge.
    Reversed and remanded.
    
      Love é Johnson and LckoardJ. While for appellant..
    The court’s error in refusing to permit the appellant .to file an application for a continuance, on account of the absence of a material witness for whom the court had issued an attachment not yet returned, was such" an abuse of the court’s judicial discretion as to entitle the appellant to a reversal of the cause. The granting or refusing a continuance is a matter largely in the sound discretion of the court, but being a judicial discretion, is a proper subject for review. Alt v. Grosclose, 1 Mo. App. 645; Tunstallv. Hamilton, 8 Mo. 500; Barnumv. Adams, 31 Mo. 532; State v. Lewis, 74 Mo. 222; State v. Anderson, 96 Mo. 241; Barlow v. Campbell, 56 Mo. 117; Lebow v. Goode, 67 Mo. 126.
    
      William B. SJcinner for respondent.
   Rombauer, P. J.

The action is replevin. In the trial court the plaintiff recovered judgment for possession and damages. The defendant appeals, and assigns for error, among other things, the refusal of the court to permit it to file its application for a continuance and to entertain a motion for a continuance.

The record discloses the following facts: The •cause was called for trial in the absence of defendant’s attorney, who had charge of the case. Another attorney acting for him informed the court that there was some understanding between counsel that the trial of ■.the cause would be postponed until the return of the attorney in charge of the case, to which the court very properly replied that it could pay no attention to agreements of counsel but would proceed with the trial of the cause. The attorney thereupon informed the court that one of the defendant’s witnesses, who .had been •duly subpoenaed, was absent; that an attachment which was issued for the witness had not been returned, and that he was not prepared to go to trial without the absent witness. The court thereupon ordered a jury to be called. Before the jury was impaneled, the attorney appearing for the defendant requested leave to. prepare and file a formal application for a continuance on account of the absent witness, to which the court replied: “You can not file an application sufficiently strong, nor could you make a sufficient showing of diligence to obtain a continuance.” Thereupon the court renewed its order to the sheriff to get a jury, and the attorney representing the defendant withdrew from the case. The cause was tried, the defendant not being represented, with the result above stated.

After verdict, and accompanying its motion for new trial, the defendant’s regular attorney tendered a formal affidavit for a continuance, and, the counsel for plaintiff in open court consenting that it might be done, he prayed that such affidavit should be considered filed as of the day of trial. This affidavit, which is preserved in the transcript, shows sufficient diligence, and shows that the testimony of the absent witness was material, and complies in other respects with the statutory requirements of an affidavit. The court refused to permit the affidavit to be filed as of the day of trial, but ordered it to be filed as of the date of its actual filing, at which time, of course, it could perform no office whatever, besides disclosing its contents.

While it is well settled that the granting of a continuance is to a great extent within the discretion of the trial court, it is equally well settled that such discretion is judicial in its character and subject to review on appeal. It was decided in McLane v. Harris, 1 Mo. 700, that, where a party uses due diligence to procure testimony and fails, and the trial court refuses a continuance on proper application, the appellate court will reverse the judgment on that ground alone. It is for the appellate court in such cases to determine whether the facts disclosed show sufficient diligence, and whether the testimony of the. absent witness was material. Barnum v, Adams, 31 Mo. 534; State v. Lewis, 9 Mo. App. 321; s. c., 74 Mo. 222; State v. Anderson, 96 Mo. 241.

Nor can it be said that the appellant was bound to-produce and tender its written application for a continuance after it was informed by the court, in substance, that any application it would make would be unavailing. The rule in this state is that, where it clearly appears that a tender, if made, would have been unavailing, the showing of a tender is not essential. McKnight v. Watkins, 6 Mo. App. 118; McManus v. Gregory, 16 Mo. App. 375; Harwood v. Deimer, 41 Mo. App. 49. The record fails to disclose any facts by which the trial court could justly determine that the-defendant had failed to use due diligence, while the affidavit subsequently made indicates that the application was made in good faith, and that the applicant-had used due diligence to procure the attendance of the-witness. Since the testimony of the witness, as disclosed by the affidavit, was ' clearly material, we must conclude that the court erred in not entertaining the* application. Judgment reversed and cause remanded. All the judges concur.  