The illness or absence, from providential cause, of counsel where there is but one, or of the leading counsel where there are more than one, shall be a sufficient ground for continuance, provided that the party making the application for a continuance will swear that he cannot go safely to trial without the services of the absent counsel, that he expects his services at the next term, and that the application is not made for delay only.
(Orig. Code 1863, § 3454; Code 1868, § 3474; Code 1873, § 3525; Code 1882, § 3525; Civil Code 1895, § 5132; Penal Code 1895, § 964; Civil Code 1910, § 5718; Penal Code 1910, § 990; Code 1933, § 81-1413.)
Cross references.- Corresponding provision relating to criminal procedure, § 17-8-24.
JUDICIAL DECISIONS
Continuance based on illness of counsel is not favored. Allen v. State, 10 Ga. 85 (1851); Cotton States Life Ins. Co. v. Edwards, 74 Ga. 220 (1884); Curry v. State, 17 Ga. App. 377, 87 S.E. 685 (1915).
Compliance with this section must be full. House v. House, 149 Ga. 63, 99 S.E. 37 (1919) (see O.C.G.A. § 9-10-155).
Strict compliance with O.C.G.A. § 9-10-155 is required to obtain continuance of case proceeding. Adams v. Hill, 177 Ga. App. 492, 340 S.E.2d 27 (1986).
The trial court did not err in concluding that plaintiffs failed to appear and failed to comply with the requirements for a continuance, where there was no motion for continuance and their counsel, who claimed an inability to attend trial due to illness, made no entry of appearance as counsel of record until more than two months after the trial court granted defendant's motion to dismiss. Martin v. Wyatt, 243 Ga. App. 319, 533 S.E.2d 149 (2000).
Conditions for continuance based on absence of counsel.
- A showing of compliance with O.C.G.A. § 9-10-155 plus a showing of diligence under O.C.G.A. § 9-10-166 is required to obtain a continuance due to the absence of counsel. McKinnon v. Shoemaker, 166 Ga. App. 231, 303 S.E.2d 770 (1983).
Requisites of motion for continuance for absence of counsel.
- Motion for continuance under this section, on account of absence of counsel from providential cause, must be in strict compliance with this section and must affirmatively disclose the essentials provided for herein, and the party making the application must swear to the essential requirements thereof. Mosley v. Bridges, 71 Ga. App. 156, 30 S.E.2d 355 (1944) (see O.C.G.A. § 9-10-155).
Movant for continuance must swear to conditions enumerated in section.
- Where a party in a cause makes a motion for a continuance on the ground of the absence of the party's counsel, where there is but one, or of leading counsel, movant must swear that the movant cannot go safely to trial without the services of such absent counsel, that the movant expects counsel's services at the next term of court, and that the application for a continuance is not made for delay only. Lancaster v. Ralston, 61 Ga. App. 853, 7 S.E.2d 792 (1940); Williams v. Gooding, 226 Ga. 549, 176 S.E.2d 64 (1970). See also Smith, Son & Bro. v. Printup Bros. & Co., 59 Ga. 610 (1877); Lamar v. McDaniel, 78 Ga. 547, 3 S.E. 409 (1887); Whitley v. Clegg, 120 Ga. 1038, 48 S.E. 406 (1904); Manion v. Varn, 152 Ga. 654, 111 S.E. 30 (1922).
Motion for continuance is addressed to the sound discretion of the court. Hilton v. Haynes, 147 Ga. 725, 95 S.E. 220 (1918).
A motion for continuance is addressed to the sound discretion of the trial court, and a denial will not be disturbed in the absence of a manifest abuse of discretion. Blair v. State, 166 Ga. App. 434, 304 S.E.2d 535 (1983).
If movant complies with this section it is error to refuse a continuance. Thomas v. State, 92 Ga. 1, 18 S.E. 44 (1893); Dennard v. Farmers & Merchants Bank, 151 Ga. 445, 107 S.E. 56 (1921) (see O.C.G.A. § 9-10-155).
The trial court erred in denying motion for continuance where lead counsel was involved in the trial of another case in another court and had with due diligence made the showings required by this statute that the client could not go safely into trial without the lead counsel's services and that the continuance was not sought solely for the purposes of delay. Georgia Am. Ins. Co. v. Varnum, 179 Ga. App. 195, 345 S.E.2d 863 (1986), aff'd, 182 Ga. App. 907, 357 S.E.2d 609 (1987).
Mere absence of counsel is not sufficient, even if counsel has in the counsel's possession papers which would establish the defense. Hook v. Teasley, 72 Ga. 901 (1884).
Absence of plaintiff's counsel, without leave, to attend proceedings in other courts is not ground for continuance or postponement. Davis v. Barnes, 158 Ga. App. 89, 279 S.E.2d 330 (1981).
Continuance due to counsel's engagement in trial in different circuit not favored.
- The postponement of the trial of a case on account of the absence of counsel therein, who is, without leave, engaged in the trial of a case in a court of a different circuit, is in the discretion of the court, and a postponement for such cause is not favored. Progressive Life Ins. Co. v. Haygood, 53 Ga. App. 231, 185 S.E. 534 (1936).
Continuance because of the absence of counsel is not favored. Atlanta W. Enters., Inc. v. Cobb County Bank, 150 Ga. App. 577, 258 S.E.2d 193 (1979).
Trial court may deny continuance where co-counsel present and defendant uninjured.
- Where none of the statutory requirements necessary for the granting of a continuance were put forth by co-counsel when the case was called, and there has been no showing that the defendant was injured by the absence of lead counsel, there was no merit in the complaint that the trial court erred in denying the defendant's motion for continuance because of the absence of counsel and that the defendant had been denied the defendant's sixth amendment right to counsel and the defendant's fifth amendment right to due process as guaranteed by the state and federal Constitutions. Blair v. State, 166 Ga. App. 434, 304 S.E.2d 535 (1983).
Second motion properly denied where ground of illness submitted only after first motion denied.
- Trial judge made a proper ruling when the judge refused to grant a continuance upon the ground of the illness of counsel, when this latter ground was not submitted for the consideration of the court until after a former motion asking for a continuance had been decided adversely to the movant. Aiken v. Carmichael, 127 Ga. 407, 56 S.E. 440 (1907).
A doctor's affidavit of illness is not required. Martin v. Wyatt, 243 Ga. App. 319, 533 S.E.2d 149 (2000).
Motion not in compliance with section properly denied.
- Where the defendant stated that the defendant had counsel to represent the defendant, and exhibited a telegram from such counsel that counsel was ill, that counsel was so writing the trial judge, and that counsel was enclosing in such letter a doctor's certificate, the defendant did not comply with this section in making the defendant's motion for continuance, and the trial judge did not err in refusing to continue the case. Felker v. Still, 48 Ga. App. 24, 171 S.E. 838 (1933) (see O.C.G.A. § 9-10-155).
Corporation's postponement request was properly denied as the corporation had fired the attorney making the request and the unsworn application failed to set forth all of the representations strictly required by O.C.G.A. § 9-10-155. Chattowah Open Land Trust, Inc. v. Jones, 281 Ga. 97, 636 S.E.2d 523 (2006).
Continuance granted where counsel absent with leave of court.
- Where the sole counsel, or one of the counsel whose presence is necessary on account of the circumstances of the case, is absent with leave granted by the court, a continuance should be granted. Farmer v. Perry, 46 Ga. 543 (1872); Ross v. Head, 51 Ga. 605 (1874).
Continuance properly denied where no showing that absent counsel was leading counsel.
- Where it did not appear from the ground of a motion for new trial that A was leading counsel in the case, the court did not err in refusing a continuance because of the absence of counsel. J.L. Young Co. v. Minchew, 42 Ga. App. 228, 155 S.E. 356 (1930).
Fact that attorney has substituted another in the place does not become binding on the attorney's client and deprive the client of right to continue. Dalton City Co. v. Dalton Mfg. Co., 33 Ga. 243 (1862).
Counsel's attempt to relay information to judge through third person at counsel's and client's peril.
- Where counsel attempts to relay information to a trial judge through a third person, counsel does so at counsel's peril and at the peril of the client. Atlanta W. Enters., Inc. v. Cobb County Bank, 150 Ga. App. 577, 258 S.E.2d 193 (1979).
Absence of one of three counsel.
- As there was no showing that parties were injured by the absence of one of their three counsel from trial, the court did not abuse its discretion in denying their motion for continuance. Opatut v. Guest Pond Club, Inc., 188 Ga. App. 478, 373 S.E.2d 372 (1988).
Cited in A. Shaw & Son v. Gunn, 41 Ga. 584 (1871); Carter v. Pitts, 125 Ga. 792, 54 S.E. 695 (1906); Lambert Hoisting Engine Co. v. Bray & Co., 127 Ga. 452, 56 S.E. 513 (1907); Dale v. Beasley, 141 Ga. 594, 81 S.E. 849 (1914); Georgia N. Ry. v. Home Mercantile Co., 17 Ga. App. 755, 88 S.E. 413 (1916); Hilton v. Haynes, 147 Ga. 725, 95 S.E. 220 (1918); Nalley Land & Inv. Co. v. State Hwy. Bd., 49 Ga. App. 258, 175 S.E. 269 (1934); Carey v. Crowe, 88 Ga. App. 787, 77 S.E.2d 766 (1953); Carver v. Cranford, 122 Ga. App. 100, 176 S.E.2d 272 (1970); George v. Handshakers, Inc., 140 Ga. App. 641, 231 S.E.2d 575 (1976); Hill v. Jackson, 147 Ga. App. 704, 250 S.E.2d 7 (1978); Peppers v. Siefferman, 153 Ga. App. 206, 265 S.E.2d 26 (1980); K-Mart Corp. v. Key, 160 Ga. App. 413, 287 S.E.2d 266 (1981); Lewis v. Dairyland Ins. Co., 169 Ga. App. 265, 312 S.E.2d 165 (1983); Washburn v. Sardi's Restaurants, 191 Ga. App. 307, 381 S.E.2d 750 (1989); Gomez v. Peters, 221 Ga. App. 57, 470 S.E.2d 692 (1996).
RESEARCH REFERENCES
Am. Jur. 2d.
- 17 Am. Jur. 2d, Continuance, §§ 12, 15, 29, 31.
C.J.S.- 17 C.J.S., Continuances, § 51.
ALR.
- Right to continuance because counsel is in attendance at another court, 112 A.L.R. 593.
Continuance of civil case because of illness or death of counsel, 67 A.L.R.2d 497.