Opinion
6 Div. 618.
March 25, 1948.
Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.
Phil Joiner, of Birmingham, for appellants.
Hugh A. Locke, of Birmingham, for appellees.
After full consideration of the record in this case, we are of opinion that the court erred in refusing to continue the trial of the case for forty-eight hours, as requested by the complainant. The basis for this conclusion is, at the time the case was set down for trial at the instance of the defendants, the case was not at issue on questions of fact. From the statements made in the colloquy between counsel and the trial judge, it appears that the court had announced from the bench at a previous sitting that the demurrer to the bill as last amended was overruled, though no entry of this order was made on the minutes. When the complainant moved for a decree pro confesso, there was no answer on file to the bill as last amended, and the case was subject to such decree. The record shows that the answer to the original bill previously filed was not refiled to the bill as last amended until after the motion for a decree pro confesso was overruled. The refiling was included in the general answer denying all the allegations of the bill as last amended filed June 13, 1947.
Complainant should have been allowed reasonable time to bring his witnesses to court so as to present the case on its merits.
For the error noted the judgment of dismissal is reversed and one here rendered overruling the motion and remanding the cause to the circuit court for further proceedings.
Reversed, rendered and remanded.
GARDNER, C. J., and BROWN, LIVINGSTON and SIMPSON, JJ., concur.