Opinion
No. 2326
Decided February 11, 1955.
Continuance — Granting or refusing discretionary with trial court — Discretion not interfered with by reviewing court, when — Pleading — Legal conclusions in petition — Not admitted by demurrer — Procedendo.
1. The granting or refusing of a continuance rests within the sound discretion of the trial court, and an appellate court will not interfere with the exercise of such discretion unless the action of the trial court is plainly erroneous and constitutes an abuse of discretion.
2. A plaintiff's allegations that he has no adequate remedy at law and that the trial court abused its discretion in granting a continuance are legal conclusions and are not admitted on demurrer.
IN PROCEDENDO: Court of Appeals for Montgomery County.
ON DEMURRER to petition.
Messrs. Schaffer Andary, for relators.
Messrs. Pickrel, Schaeffer Ebeling, and Mr. William H. Selva, for respondent.
This cause is submitted on a demurrer to a petition for a writ of procedendo. The petition alleges that an action in which relators were parties plaintiff was duly set for trial and that three days before the trial date, upon motion of defendant, a continuance was granted by respondent.
The granting or refusing of a continuance rests within the sound discretion of the trial court. 9 Ohio Jurisprudence, 202, Section 7; State, ex rel. Buck, v. McCabe, 140 Ohio St. 535, 537, 45 N.E.2d 763. An appellate court will not interfere with the exercise of such discretion unless the action of the court is plainly erroneous and constitutes an abuse of discretion. Norton v. Norton, 111 Ohio St. 262, 145 N.E. 253. The allegations that relators have no adequate remedy at law and that the trial court abused its discretion are legal conclusions and are not admitted on demurrer. Gannon v. Gallagher, Dir., 145 Ohio St. 170, 60 N.E.2d 666. Relators fail to allege facts which constitute an abuse of discretion; neither does it appear that they are without an adequate remedy at law.
Demurrer sustained.
MILLER, P. J., HORNBECK and WISEMAN, JJ., concur.