Opinion
No. 20746.
Decided September 14, 1964.
Contest between surviving wife and brother of deceased for the issuance of letters administration pertaining to deceased's estate. From a judgment entered in wife's favor, brother of deceased brings error.
Affirmed.
1. CONTINUANCE — Trial — Motion — Denial — Abuse of Discretion. Where court denied motion of deceased's brother for continuance of the trial of issue whether alleged wife of deceased was lawful wife at time of his death and entitled to letters of administration, its ruling was not an abuse of discretion where basis for motion was alleged absence and unavailability of vital witnesses at time of trial but no showing was made concerning the nature of the evidence which might have been offered by those vital witnesses.
Error to the District Court of the city and County of Denver, Hon. George M. McNamara, Judge.
Mr. GEORGE G. ROSS for plaintiff in error.
Mrs. COLLEEN G. VAN NOCKER, Mr. VICTOR N. NILSEN, for defendant in error.
WE will refer to the parties in this action by name.
One Willie Hicks died and his brother Clarence Hicks filed a petition for letters administration. In said petition Norma Hicks was not mentioned as an heir-at-law of said deceased. She filed a petition for letters of administration and asserted therein that she was the surviving wife of said deceased. In the probate court a jury trial was had on the question as to whether Norma Hicks was the lawful wife of said deceased at the time of his death. The jury found that she was the lawful surviving wife and the county court issued letters of administration to her.
Brother Clarence appealed to the district court. October 4, 1962 the case was set for trial in the district court February 28, 1963. February 13, 1963, the court granted a request by counsel for Clarence that a jury trial be had. On the date set for trial the attorney for Clarence made a motion for continuance of the trial asserting that "vital witness are outside of the jurisdiction and unavailable on February 28." No showing was made concerning the nature of the evidence which might have been offered by those "vital witnesses." The trial court denied the motion and thereupon the attorney for Clarence objected to any further proceedings and declined to participate therein. Upon the election of Clarence to withdraw from participation in the trial, the jury was excused and evidence offered by Norma was submitted to the court. It appears however that Clarence and his attorney remained in the courtroom during the taking of evidence offered by Norma and were present when the court entered judgment in her favor. At that time counsel for Clarence made the following statement:
"MR. ROSS: Let the record reflect that the appellant excepts to each and every statement of the Court in regards to this trial and excepts to the judgment of the Court."
The only question we can consider under the record before us is whether the district court abused its discretion in denying the motion for a continuance of the trial. There is nothing in the record to indicate any abuse of discretion and the judgment accordingly is affirmed.