Opinion
No. 7001.
July 18, 1952.
APPEAL FROM THE CIRCUIT COURT OF SCOTT COUNTY, R. B. OLIVER, III, J.
Edward F. Sharp, New Madrid, for appellant.
Cope Ponder, Poplar Bluff, for respondents.
This appeal is from a judgment of the trial court dismissing appellant's cause of action for want of prosecution.
After the cause reached the appellate court, Joe Nelson, plaintiff in the lower court, died, and William Nelson, administrator of the estate of Joe Nelson, was substituted as appellant by this court; so where appellant is used in the opinion, before the substitution of the administrator of the estate, by this court, as appellant, it will refer to Joe Nelson, who was plaintiff below and where the term "appellant" is used after the substitution of the administrator as appellant, it will refer to the present appellant, administrator of the estate of Joe Nelson.
Appellant, a real estate broker, filed an action against respondent, a resident of the state of Arkansas, for $1,078, real estate commission.
The action was filed in New Madrid County, Missouri, November 14, 1947, and is based upon an oral contract alleged to have been made between appellant and respondent in which appellant claims that respondent listed lands, located in Missouri, with him for sale; that by the terms of said oral contract, appellant was to receive a commission of five per cent. Appellant alleged he found a buyer, according to the terms of the contract, and made the sale and that there is now due him $1,078 commission which respondent refused to pay.
Respondent was duly served in New Madrid County with process. Default judgment was entered in favor of appellant and against respondent on December 20, 1947, for the amount sued for plus interest.
On February 16, 1948, the court sustained a motion to set aside the default judgment rendered in favor of appellant and against respondent giving 20 days to plead.
March 2, 1948, respondent filed an answer denying generally the allegations of appellant's petition.
The cause was tried June 21, 1949, and the court, at the close of appellant's case, directed the jury to return a verdict against appellant.
June 22, 1949, appellant filed motion for a new trial which motion was, by the court, sustained August 31, 1949.
On September 14, 1949, respondent filed his application for change of venue which was, by the court, sustained and the cause transferred to the Circuit Court of Scott County, Missouri.
On August 10, 1950, the cause was taken up by the court and dismissed for want of prosecution.
On August 15, 1950, appellant filed his motion to set aside the dismissal which motion was submitted to the court and, by it, sustained and the cause reinstated.
In the motion to set aside the dismissal, appellant states he did not have time to prepare for trial after he learned the cause was set and that he could not be ready for trial because of his illness. The motion states that appellant's attorney had notified the clerk by letter requesting that this condition be called to the attention of the judge and the cause passed. It states that the letter did not reach the clerk until after August 10th, and was too late to have the court's attention called to the matter; and it further alleged that certain depositions, taken by appellant, had been lost and that appellant had requested the court reporter, who took the same, to furnish duplicate copies thereof, which had not been furnished.
On November 16, 1950, appellant filed application for continuance which was, by the court, overruled. This application for continuance is as follows:
"Comes now Joe Nelson, plaintiff in the above entitled cause and states that he can not proceed with the trial of this cause on the date it is set and moves the Court have a continuance in said cause on the following grounds:
"That the Plaintiff is suffering from ruptures having five active uncontrolled ruptures and is at this time confined to his bed on account of said illness and on the advice of his physician and is wholly unable physically to attend to the trial of this cause in Benton for that reason.
"In support whereof, plaintiff Joe Nelson attaches hereto and files the certificate and affidavit of Dr. Orville B. Chandler, his physician, in support of the facts as stated above."
On November 16th the trial court entered this order:
"Now, on this day in open court, this matter is by the Court ordered dismissed for want of prosecution."
Appellant filed motion to set aside the court's order of dismissal made November 16, 1950, and, as grounds therefor, stated:
That appellant was confined to his bed by order of his physician on account of illness; that he had notice that the cause was set for trial and had on the 10th day of November gone to Quilin to locate witnesses, which he was unable to do; that he had a subpoena for the witnesses issued by the clerk of the court November 10th; that he went to Campbell on November 13th, where he located the witnesses who accepted service; that this activity caused him to be confined to his bed during November 14th and 15th; that he advised his attorney he was unable to attend trial on the 16th and furnished him with an affidavit from his doctor; that, through his attorney, he notified respondent's attorney, by telephone, that he would be unable to attend trial and signed an application for continuance on the 15th day of November; that he was unable to attend trial because of the fact of his illness and not for any reason to delay the trial.
Notice of appeal was filed November 21, 1950. On October 21, 1951, appellant died. February 29, 1952, William Nelson, administrator of appellant's estate, filed application to this court to be substituted as appellant, which was accordingly done March 5, 1952.
Appellant's first assignment of error complains that the trial court erred in refusing appellant's application for continuance.
Section 510.080 RSMo 1949, V.A.M.S., reads as follows:
"For good cause shown, the court may continue an action to a fixed day, or to a date for trial to be set thereafter. * * * "
Section 510.090 RSMo 1949, V.A.M.S., reads:
"Every application for a continuance shall, unless the adverse party consent that it be made orally in open court, be made by motion in writing, accompanied by the affidavit of the applicant, or of some other credible person, setting forth the facts on which the application is founded."
Appellant's application for continuance is in writing as provided by the statute above quoted. The facts set forth upon which the application was founded are as follows:
"* * * that the plaintiff is suffering from ruptures * * * and is at this time confined to his bed on account of said illness and on the advice of his physician and is wholly unable physically to attend to the trial of this cause in Benton for that reason."
The application is supported by an affidavit from Dr. Orville B. Chandler.
The record discloses that the cause of action had been set down for trial on the 10th day of August, 1950, by the trial court; that appellant made no appearance on this date and the court dismissed his cause of action for want of prosecution.
Appellant filed a motion to set aside this judgment of dismissal August 15, 1950, which motion was, by the trial court, sustained. Appellant's motion to set aside the judgment of dismissal stated that appellant was sick and unable to get his witnesses for trial at the time set. This application also stated that appellant was not advised of the date of trial, to-wit, August 10, 1950, and could not be ready for trial because of continued illness.
The record also discloses that this cause had been tried in the Circuit Court of New Madrid County, first, on December 20, 1947, when a default judgment was rendered in favor of appellant and, again, on June 21, 1949, when the cause had been tried before a jury and the trial court rendered a judgment for respondent at the close of appellant's testimony.
Under section 510.070 RSMo 1949, V.A.M.S., it is provided that as soon as possible after issue is joined in a pending case or after ten days from date the case reaches the trial court by change of venue, the clerk shall place the case upon the trial docket. The statute further provides that the cause shall be set for trial in accordance with the rules and practices of the trial court.
Now the trial court fully complied with this section of the statute. It would seem that appellant was suffering from a disease which would likely require long and continued illness and, from the fact that he actually died some year after the appeal to this court, would indicate that diligence would have required him to have given his deposition so that the matters in controversy might be settled.
Respondent was a nonresident of this state. He had to travel from another state to attend trial and, for that reason, it was the duty of appellant, who instituted this action, to see that his case was prepared and presented to the court.
In McGinley v. McGinley, Mo.App., 170 S.W.2d 938, defendant's attorney, in a divorce suit, at the beginning of the trial, made an oral objection to the hearing thereof because of defendant's illness and because said attorney was not advised of the setting of the case until about five days before the trial. The court held that this was not an application for continuance because it was not in writing nor under oath and because it did not set forth the usual statements as to diligence, or the impossibility of proceeding without plaintiff's evidence or presence, or any efforts to secure her testimony. The court stated this law on page 940 of 170 S.W.2d of the opinion:
"* * * The case had once been continued at defendant's instance. A further continuance for the same causes rested largely in the discretion of the trial court, and its action will not be interfered with on appeal unless such discretion was obviously abused. * * *"
The court further states in this opinion that the law does not require trial courts to give any other notice to litigants of the setting of causes for hearing than that afforded by the setting of the docket of the courts.
Appellant contends in this case that he did not receive notice of the setting of the cause of action for trial in time to prepare his case for trial. But he did not show that the cause was not regularly docketed for trial under the rules of the court or that appellant's attorney, by diligence, could not have learned of the setting at an earlier date, or that, by diligence, he could not have been prepared for trial. It must be remembered that appellant lived in New Madrid County, which adjoins Scott County where the cause was to be tried. He does not deny that the trial court set his cause of action for trial and had a jury ready for such trial on August 10, 1950, at which time neither appellant nor his attorney appeared at the trial. The trial court was very generous with appellant and sustained his motion to set aside a dismissal for want of prosecution because of the illness of appellant. The cause was, again, set for trial for November 16, 1950. Appellant had ample time to have presented his deposition if he were unable to attend court, but gives no reasons for not doing so. He did file an application for continuance on that date which was, by the court, overruled. The application merely states that appellant was confined to his bed by order of a physician. He did not state in his application for continuance what could be proven by appellant or what his evidence would show. He did not state what facts could be shown in evidence by any absent witnesses or the materiality of their evidence. He did state he had gone to Quilin to locate an absent witness and had a subpoena issued for him but the application does not comply in any way with the requirements of the statute as set forth in section 510.100 RSMo 1949, V.A.M.S.
We agree with appellant's contention that an application for continuance is addressed to the discretion of the trial court and that this discretion is reviewable on appeal, but we do not agree with appellant that, under the evidence in this case, the trial court abused its discretion. We find from the record that it was the duty of appellant to look after his case, which was pending in the Circuit Court of Scott County, Missouri. It was not the duty of the court to have to notify appellant of the dates of trial but, by its rules, the court was justified in docketing the case for trial and, after the court had twice called a jury to try this case, which had been docketed for trial, and after the respondent had been required to come from another other state with his witnesses to meet appellant's alleged cause of action, it certainly was the duty of appellant to have submitted his deposition, if he were unable to be present at trial or, at least, to have timely informed the court of his inability to do so. This cause had been tried before. There was no reason why some arrangements could not have been made to have the testimony of appellant ready for trial. Of course, as to any other witnesses, who might have been absent, the application is wholly insufficient to justify a reversal in this case.
We find on appellant's first allegation of error that the trial court did not abuse its discretion.
Appellant's second assignment of error complains that the court erred in dismissing appellant's cause of action for refusing to grant appellant's application for continuance.
For the reasons above cited under assignment No. 1, we find against appellant on this assignment.
The third assignment of error relied upon on by appellant is that the trial court erred in refusing to reinstate appellant's cause of action.
This ground is without merit for the reasons assigned under the first assignment of error.
Appellant's fourth assignment of error complains of the action of the trial court in refusing appellant's application for continuance and dismissing the cause of action because the court abused its discretion.
With this contention we cannot agree. We agree with the law as cited by appellant but the facts in this case justified the trial court in finding that appellant did not use due diligence in presenting his case for trial. There can be no question but that appellant was aware of the serious condition he was in; that he could have had his testimony presented by deposition or could, at least, have attempted to have had an agreement as to what his testimony would be; but, instead, he was content to permit the trial court to set his cause of action for trial on two separate occasions and go to the expense of calling a jury for the sole purpose of trying his case. Appellant was content to cause the respondent to come all the way from Arkansas with his witnesses for trial and, if he did notify respondent's attorney, the notice was of such short duration as to not give time to prevent respondent's preparation for trial. On the first of these attempted trials, appellant nor his attorney nor any one else made their appearance whatever at the trial and, on the second occasion, we think, the application for continuance did not show diligence on the part of appellant.
Judgment affirmed.
VANDEVENTER, P. J., and BLAIR, J., concur.