WORLD HOMES, INC. v. WILSON, 54 Ala. App. 47 (1974)

WORLD HOMES, INC. v. WILSON, 54 Ala. App. 47 (1974)
304 So.2d 603


Civ. 424.Court of Civil Appeals of Alabama.
December 11, 1974.

Appeal from the Circuit Court, Jefferson County, Cecil M. Deason, J.

W. Wheeler Smith, Birmingham, for appellant.

Trial Courts should not attempt to dispose of pending causes when disposal would cause injustice to parties and their counsel. Knowles v. Blue, 209 Ala. 27, 95 So. 481 (1923); Ex parte Central Alabama Dry Goods Co., 238 Ala. 21, 189 So. 56
(1939); Deegan v. Pake, et al., 233 Ala. 436, 172 So. 270
(1937). It is an abuse of the Trial Court’s discretion to deny the postponement of a cause when the party moving for continuance is totally withoutPage 48
its material witnesses and the party is not present. Ex parte Driver, 258 Ala. 233, 62 So.2d 241 (1952); American Rubber Corp. v. Jolley, 260 Ala. 600, 72 So.2d 102 (1954); Ray v. Richardson, 250 Ala. 705, 36 So.2d 89 (1948). A party has a right to select his counsel unless it unduly interferes with right of other party to have case tried without unreasonable delay. City of Birmingham v. Goolsley, 150 So. 322, 227 Ala. 421
(1933); McDavid v. United Merchantile Agencies, Inc.,248 Ala. 299, 27 So.2d 501 (1946).

Donald Hugh Jones, Birmingham, for appellee.

Continuances are not favored and trial court’s denial of a motion for continuance will be upset only when a palpable or gross abuse of discretion has been shown. Ex parte Taylor,247 Ala. 308, 24 So.2d 217. Continuances are not favored and a large discretion is vested in the trial court as to whether or not they should be granted and a reviewing court will not revise such ruling in the absence of a clear showing of abuse. Shores v. Sanders, 271 Ala. 525, 126 So.2d 201.

WRIGHT, Presiding Judge.

This appeal is taken from a judgment entered April 29, 1974 by the court sitting without a jury.

Assignment of error argued in brief for new trial is that the court erred in denying motion filed by defendant. The grounds of the motion for new trial were: (1) Damages awarded were excessive; (2) Defendant’s counsel had no prior notice of the trial and as a consequence was forced to represent defendant without being allowed adequate time for preparation; (3) The verdict was not sustained by the preponderance of the evidence.

There is no transcript of the evidence in the record. Therefore, there is no basis for consideration of grounds one and three of the motion for new trial. Ground two of the motion forms the substance of the appeal.

The record discloses that summons and complaint was served on defendant on September 13, 1973. Answer was filed by defendant on October 9, 1973. Nothing further appears until the minute entry of the court dated April 29, 1974. The minute entry states that jury demand was withdrawn by plaintiff with consent of defendant. Testimony was heard by the court and judgment rendered for the plaintiff.

Upon motion filed by defendant, the court, on September 13, 1974, corrected the record to show as follows:


“September 13, 1974: The motion of the defendant to correct the record to reflect that the attorney representing the defendant, Honorable Wheeler Smith, made an oral motion to continue this cause on the 29 day of April, 1974, which was overruled by the court on the grounds that this cause was sent out for trial as ready by the presiding judge at the call of the docket. The motion is granted to reflect the above.

Deason, Judge”

The above is all the record shows relating to refusal of the court to grant a continuance. The motion for new trial is not accompanied by affidavit or request for testimony. The argument of appellant relates matters of fact not of record and therefore cannot be considered by this court on appeal. We have before us only the record showing suit, appearance and answer of defendant, calling of the case for trial, motion by counsel for continuance, denial of continuance, agreement of counsel to withdraw jury demand, and entry of judgment.

Appellant contends the trial court abused its discretion in denying a continuance because counsel did not have notice of the trial in time to prepare his case and thus due process was denied.Page 49

Continuances are not favored and discretion is vested in the trial court as to granting or denial. The reviewing court will not revise the exercise of such discretion except upon a showing of gross abuse. Shores v. Sanders, 271 Ala. 552,126 So.2d 201. There being no evidence in the record before us showing an abuse of discretion, the trial court will not be reversed.


BRADLEY and HOLMES, JJ., concur.