Owen v. Sweat
Owen v. Sweat
Opinion of the Court
(After stating the foregoing facts.) The only question raised under the present record is whether the court erred in refusing a motion to continue the case. There is another 'ground in the amendment to the motion for a new trial, as well as the ordinary general grounds of the original motion for new trial; but since no reference is made to anything in the brief other than the two grounds of the motion for new trial with reference to the continuance, all other assignments of error must be treated as having been abandoned by the plaintiff in error.
The motion for a continuance was based upon the absence of the plaintiff in error, alleged to have been due to providential cause,
Section 5723 of the Code of 1910 upon the subject of continuances provides that “No appeal case shall be continued more than twice by the same party, except for providential case, and for which it may be continued as often as justice may require.” Section 5717 of the. Code Of 1910 is as follows: “If either party shall be providentally 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.” It is insisted by the plaintiff in error that § 5723 necessarily refers to continuances from term to term, and not from week to week, and that the inference is clear that any party to an appeal case is entitled as a matter of law to two continuances — certainly for providental cause, and as many more as justice may require; it being insisted that as Brooks superior court is not a court that remains as a matter of law in continuous session for thirty days or more, section 5723 of the Code of 1910 has no application to the question now before us.
Plaintiff in error insists that her continuances were not exhausted, for two reasons: First, because under § 5723, this being an appeal case, she was entitled to at least two continuances for providential cause. Second, as a matter of general law, a continuance for providential cause is not chargeable to either party. Printup v. Mitchell, 19 Ga. 586; Morse v. Lowe, 111 Ga. 274 (36 S. E. 688). The showing of the plaintiff in error would be unanswerable, were it not that the evidence adduced upon the hearing of the motion is in conflict. However it appears from the record that there was evidence to authorize the trial judge to find that the absence of the party was voluntary/ and not due to providential cause; and the question before us is whether it can
Judgment affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.