Church v. Church

We think that this judgment must ¡be reversed for the refusal of the trial court to grant a postponement upon the motion of the plaintiff. The affidavit for a postponement shows that there were numerous witnesses outside of the county of Fulton who were necessary and material for the' plaintiff upon the trial of this action Which the plaintiff had been unable to procure. In the affidavit is included the usual affidavit of merits and the usual case made for a postponement of the trial. It is true that, one of. the witnesses claimed to be a necessary and material witnessi was produced there by the- defendant, but the affidavit specifies other witnesses whose testimony is material to the plaintiff.

*351Nor can the plaintiff be held to have been negligent in not having these witnesses at the trial. The defendant had been required by an order of the court to give to the plaintiff thirty dollars counsel fee to enable the plaintiff to prepare for trial and to subpoena, witnesses. This counsel fee was not paid until the morning of the day of the trial when it was too late for the plaintiff to procure the. necessary witnesses. We think that she might fairly have waited until the counsel fee was paid her before she prepared for trial, and the delay of the defendant in making payment thereof must estop the defendant from claiming that plaintiff was negligent in failing to make her preparation.

With this disposal of the judgment, it is probably unnecessary to determine the appeal from the order declining to settle the issuea for a jury trial. If there had been a waiver for the purpose of a, trial upon the adjourned day upon which it was tried, that waiver would hardly be applied where other good and sufficient reason existed for postponing the trial from the day upon which it waa consented that the trial should be had. The judgment should be-reversed and a new trial ordered, with costs to plaintiff- to abide event.

All concurred.

Judgment reversed and new trial granted, with costs to appellant: to abide event, and order modified so as to provide leave for renewal of motion to' settle issues, and as so modified affirmed.