
    51175.
    COCHRAN v. McCOLLUM et al.
   Bell, Chief Judge.

This is an appeal from a judgment which denied a motion for continuance and dismissed the caveat to a will for lack of prosecution. The Supreme Court transferred this case to us saying that the issue here, the denial of the motion for continuance, does not involve "the construction of wills” and falls within our jurisdiction. Held:

When this case was called for trial, the caveator was not present in court and counsel for the caveator moved for a continuance on the ground that the caveator was ill and could not attend court. The affidavit of a physician was offered in which he averred that the caveator was a patient under his care and confined to a hospital where she was scheduled for diagnostic tests on the date of trial; and that because of this confinement she would be unable to appear in court, but that the admission to the hospital was not an emergency. Code § 81-1412 provides "If either party shall be providentially prevented from attending at the trial of any cause, and the counsel of such absent party will state in his place that he cannot go safely to trial without the presence of such absent party, such cause shall be continued, provided his continuances are not exhausted.” Nowhere in the record did counsel state in his place that he could not safely go to trial without the presence of the caveator. It does not appear that the caveator’s physical condition precluded her from appearing in court, as by her own evidence her physician stated that the diagnostic tests were not emergency medical procedures. No abuse of discretion has been shown.

Submitted October 6, 1975

Decided October 23, 1975

Rehearing denied November 14, 1975.

Clayton H. Hollingsworth, Jr., for appellant.

Virginia Bips, Lane & Sanders, Thomas C. Sanders, for appellees.

Judgment affirmed.

Webb and Marshall, JJ., concur.  