O.C.G.A. § 9-10-155 (2019)

Annotations

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 Ga. LEXIS 73 (1851); Cotton States Life Ins. Co. v. Edwards, 74 Ga. 220, 1884 Ga. LEXIS 369 (1885); Curry v. State, 17 Ga. App. 377, 87 S.E. 685, 1915 Ga. App. LEXIS 433 (1915). Compliance with this section must

be full. House v. House, 149 Ga. 63, 99 S.E. 37, 1919 Ga. LEXIS 127 (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 Ga. App. LEXIS 1463 (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 Ga. App. LEXIS 456 (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 Ga. App. LEXIS 2113 (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 Ga. App. LEXIS 306 (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 Ga. App. LEXIS 287 (1940); Williams v. Gooding, 226 Ga. 549, 176 S.E.2d 64, 1970 Ga. LEXIS 591 (1970). See also Smith, Son & Bro. v. Printup Bros. & Co., 59 Ga. 610, 1877 Ga. LEXIS 348 (1877); Lamar v. McDaniel, 78 Ga. 547, 3 S.E. 409, 1887 Ga. LEXIS 25 (1887); Whitley v. Clegg, 120 Ga. 1038, 48 S.E. 406, 1904 Ga.

LEXIS 788 (1904); Manion v. Varn, 152 Ga. 654, 111 S.E. 30, 1922 Ga. LEXIS 246 (1922). Motion for continuance is addressed to the sound discretion of the court. Hilton v. Haynes, 147 Ga. 725, 95 S.E. 220, 1918 Ga. LEXIS 122 (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 Ga. App. LEXIS 2201 (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 Ga. LEXIS 2 (1893); Dennard v. Farmers & Merchants Bank, 151 Ga. 445, 107 S.E. 56, 1921 Ga. LEXIS 285 (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 Ga. App. LEXIS 1878 (1986). 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 Ga. LEXIS 346 (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 Ga. App. LEXIS 2085 (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 Ga. App. LEXIS 48 (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 Ga. App. LEXIS 2212 (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 Ga. App. LEXIS 2201 (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 Ga. LEXIS 283 (1907). A doctor’s affidavit of illness is not required. Martin v. Wyatt, 243 Ga. App. 319, 533 S.E.2d 149, 2000 Ga. App. LEXIS 456 (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 Ga. App. LEXIS 444 (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 Ga. LEXIS 839 (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 Ga. LEXIS 115 (1872); Ross v. Head, 51 Ga. 605, 1874 Ga. LEXIS 209 (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 Ga. App. LEXIS 304 (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 Ga. LEXIS 22 (1862), aff’d, Dalton City Co. v. Hawes & Willoughby, 37 Ga. 115, 1867 Ga. LEXIS 139 (1867). 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 Ga. App. LEXIS 2212 (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 Ga. App. LEXIS 1098 (1988).

RESEARCH REFERENCES Am. Jur. 2d. 17 Am. Jur. 2d, Continuance, §§ 10 et seq. 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.