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Musgrove v. Perkins

Supreme Court of California
Apr 1, 1858
9 Cal. 211 (Cal. 1858)

Summary

In Musgrove v. Perkins, 9 Cal. 212, the court, per Field, J., said: 'The granting or refusing a continuance rests in the sound discretion of the court below, and its ruling will not be revised, except for the most cogent reasons.

Summary of this case from Barnes v. Barnes

Opinion

         Appeal from the District Court of the Ninth Judicial District, County of Shasta.

         COUNSEL:

         J. A. McDougall, for Appellants.

          Sprague & McMurty, for Respondent.


         JUDGES: Field, J., delivered the opinion of the Court. Terry, C. J., concurring.

         OPINION

          FIELD, Judge

         When this cause was called for trial, the counsel of the plaintiff moved for a continuance, upon his affidavit that he had advised his clients not to prepare for the trial until an appeal from an order dissolving the injunction in the cause had been heard and determined by the Supreme Court; that, acting upon such advice, the necessary preparations had not been made, and could not then be made, in consequence of the absence of a material witness, whose presence or deposition would have been otherwise obtained. The Court denied a continuance, and the plaintiffs refusing to proceed with the trial, the cause was dismissed.

         The granting or refusing a continuance rests in the sound discretion of the Court below; and its ruling will not be revised, except for the most cogent reasons. The Court below is apprised of all the circumstances of the case, and the previous proceedings, and is, therefore, better able to decide upon the propriety of granting the application than an Appellate Court; and when it exercises a reasonable, and not an arbitrary discretion, its action will not be disturbed.

         The mistaken advice of counsel to his clients, not to prepare for the trial, was no ground for a continuance. It was based upon an erroneous impression that the appeal from the order dissolving the injunction operated as a stay of proceedings in the cause.

         Mistakes in matters of law are frequently made by counsel, and if parties could be relieved by simple allegations of having acted, or neglected to act, in consequence of advice predicated upon such mistakes, there would be no end of the cases in which such excuses would be offered.

         Judgment affirmed.


Summaries of

Musgrove v. Perkins

Supreme Court of California
Apr 1, 1858
9 Cal. 211 (Cal. 1858)

In Musgrove v. Perkins, 9 Cal. 212, the court, per Field, J., said: 'The granting or refusing a continuance rests in the sound discretion of the court below, and its ruling will not be revised, except for the most cogent reasons.

Summary of this case from Barnes v. Barnes
Case details for

Musgrove v. Perkins

Case Details

Full title:MUSGROVE et al. v. PERKINS

Court:Supreme Court of California

Date published: Apr 1, 1858

Citations

9 Cal. 211 (Cal. 1858)

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