Opinion
13394
April 28, 1932.
Before GREENE, J., Anderson, April, 1931. Affirmed.
Action by Merchants Fertilizer Phosphate Company against the American Land Building Corporation. From a judgment for plaintiff, defendant appeals.
Mr. J.L. Sherard, for appellant, cites: Within discretion of Court to grant continuance: 6 R.C.L., 546; 126 S.C. 423.
Mr. A.H. Dagnall, for respondent, cites: Not to be disturbed unless erroneous exercise of discretion: 148 S.C. 419.
April 28, 1932. The opinion of the Court was delivered by
This is an action on an account for fertilizers which plaintiff sold to defendant. The case was called for trial in the Court of Common Pleas for Anderson County, Judge Greene presiding. Defendant moved for continuance beyond the term, basing its motion on an affidavit by a physician to the effect that J.C. Cooper, the president and manager of the defendant corporation, was ill and unable to attend Court. Counsel for plaintiff objected to the continuance on the showing made, contending that the affidavit in support of the motion did not meet the requirements of Rule 27 of the Circuit Court. He also offered counter affidavits, to which defendant's counsel objected. The motion for continuance was overruled and the case ordered for trial. Defendant's counsel then withdrew from the Court and did not participate in the trial of the case. Plaintiff had a verdict for the amount of its account, upon which judgment was entered; from which judgment the appeal comes to this Court.
The exceptions, two in number, impute error to the Court in not granting the continuance upon the strength of the physician's affidavit that J.C. Cooper, the president and manager of the corporation, was ill and could not attend Court; and in accepting, over defendant's objection, plaintiff's counter affidavits offered in reply to that presented by defendant.
It is the established principle of this Court that a motion for continuance rests in the discretion of the Judge to whom it is addressed. He who challenges the ruling must show that there has been an abuse of that discretion. Appellant here has wholly failed to comply with that requirement. The affidavit of the physician upon which the motion for continuance rested related solely to the condition of Mr. Cooper's health. No affidavit by counsel, or of the party himself or his agent, was presented in compliance with the requirement of Rule 27. The Court was correct in its order refusing the motion on the showing made by movant. It was immaterial, then, whether the counter affidavits offered by plaintiff were received. If it was error it was harmless.
All exceptions are overruled, and the judgment of the Circuit Court is affirmed.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICE STABLER and CARTER concur.