O.C.G.A. § 9-10-167 (2019)

Annotations

Cross references. Corresponding provision relating to criminal procedure, § 17-8-22.

JUDICIAL DECISIONS Order granting or denying continuance not reversible absent clear abuse of discretion. - Trial court has a right to exercise sound discretion in passing on motions for continuance, and an order granting or denying a continuance will not be reversed unless such discretion has been manifestly abused. Gaines v. Alexander, 69 Ga. App. 512, 26 S.E.2d

130, 1943 Ga. App. LEXIS 127 (1943); State Hwy. Dep’t v. Peavy, 77 Ga. App. 308, 48 S.E.2d 478, 1948 Ga. App. LEXIS 542 (1948); Stanley v. Amos, 79 Ga. App. 297, 53 S.E.2d 568, 1949 Ga. App. LEXIS 641 (1949); Nichols v. Heffner, 222 Ga. 706, 152 S.E.2d 393, 1966 Ga. LEXIS 608 (1966); Smith v. Davis, 121 Ga. App. 704, 175 S.E.2d 28, 1970 Ga. App. LEXIS 1323

(1970); McCorquodale v. Stynchcombe, 239 Ga. 138, 236 S.E.2d 486, 1977 Ga. LEXIS 843, cert. denied, 434 U.S. 975, 98 S. Ct. 534, 54 L. Ed. 2d 467 (1977); Keno v. Alside, Inc., 148 Ga. App. 549, 251 S.E.2d 793, 1978 Ga. App. LEXIS 3215, 1978 Ga. App. LEXIS 3242 (1978). The continuance or postponement of a case is a discretionary matter and will not be controlled unless manifestly abused. Davis v. Barnes, 158 Ga. App. 89, 279 S.E.2d 330, 1981 Ga. App. LEXIS 2085 (1981). A motion for continuance is addressed to the sound discretion of the trial court. Absent a showing that it has been abused, that discretion will not be controlled. Clark v. State, 159 Ga. App. 438, 283 S.E.2d 666, 1981 Ga. App. LEXIS 2632 (1981); Turner v. City of Nashville, 177 Ga. App. 649, 340 S.E.2d 619, 1986 Ga. App. LEXIS 1505 (1986). All continuances for which express provision has not been made are granted or denied in the discretion of the trial court, and an appellate court will not reverse such decisions absent a clear abuse of discretion. This rule holds true in situations where a person is both a criminal and civil defendant. Payton v. Green, 179 Ga. App. 438, 346 S.E.2d 884, 1986 Ga. App. LEXIS 1928 (1986). In the absence of the transcript of the hearing on appellant’s motion for a continuance or other showing by appellant that the trial court abused its discretion by denying the motion, the decision will not be reversed. Payton v. Green, 179 Ga. App. 438, 346 S.E.2d 884, 1986 Ga. App. LEXIS 1928 (1986); Matthews v. Dorsey, 218 Ga. App. 545, 462 S.E.2d 452, 1995 Ga. App. LEXIS 815 (1995). In a proceeding to legitimate a child, the trial court did not abuse the court’s discretion by denying the petitioning parent’s motion for a continuance as seven continuances had already been granted in the case, five of which were attributable to the petitioning parent, and the trial court had scheduled the trial to accommodate the petitioning parent’s surgery schedule, which was to have occurred after the trial. Appling v. Tatum, 295 Ga. App. 78, 670 S.E.2d 795, 2008 Ga. App. LEXIS 1146 (2008).

Trial court did not abuse the court’s discretion by denying a defendant’s motion for a continuance because the court instructed the plaintiff to ensure that the plaintiff’s experts were made available to the defendant for interviewing, and the defendant indicated that the defendant would be able to accomplish the interviews on the evening of the first day of trial. LN West Paces Ferry Assocs., LLC v. McDonald, 306 Ga. App. 641, 703 S.E.2d 85, 2010 Ga. App. LEXIS 1016 (2010), cert. denied, No. S11C0454, 2011 Ga. LEXIS 237 (Ga. Mar. 7, 2011). In a professional malpractice claim against a dentist, although the patient argued that the trial court should have recessed the trial until the following day because an expert witness was in route, the record showed that the expert was flying standby, and there was no evidence that the expert ever boarded a flight. Given the patient’s inability to inform the court when or if the expert would arrive at trial, the trial court did not abuse its discretion in denying a motion for continuance. Cave v. Sachdeva, No. A21A1033, 2021 Ga. App. LEXIS 589 (Ga. Ct. App. Oct. 21, 2021), cert. denied, 143 S. Ct. 446, 214 L. Ed. 2d 254, 2022 U.S. LEXIS 5071 (2022). Military orders. - Injured party did not attach the military orders to the motion, and the counsel’s assertion that the injured party had received orders to report for military duty were not evidence of any service requirements. King v. Irvin, 273 Ga. App. 64, 614 S.E.2d 190, 2005 Ga. App. LEXIS 414 (2005), cert. denied, No. S05C1399, 2005 Ga. LEXIS 585 (Ga. Sept. 19, 2005). Proof that absent party providentially prevented from attending trial required for continuance. - To entitle a party to a continuance, evidence of some character under oath must be presented that the absent party was in fact providentially prevented from attending the trial. Stanley v. Amos, 79 Ga. App. 297, 53 S.E.2d 568, 1949 Ga. App. LEXIS 641 (1949). Denial of continuance for absent defendant after two verdicts in defendant’s favor not error. - Where defendant, having had two verdicts rendered in

the defendant’s favor, did not appear at the third (new) trial, even after a continuance had been granted, as the defendant had left the county and defense counsel was unable to locate the defendant, it was not error for the trial judge to deny another motion to continue and, after a verdict for the plaintiff, enter judgment in plaintiff’s favor. Smith v. Randall, 52 Ga. App. 692, 184 S.E. 360, 1936 Ga. App. LEXIS 227 (1936). Denial of motion not error where defendant’s absence would not hurt defense. - Where defendant was very old and helpless on account of sickness, which was the defendant’s last illness, would never be able to attend court or to give depositions, and would be of no help to defense counsel were the defendant present in court at the trial, the court did not err, in the exercise of sound discretion, in denying the defendant’s motion to continue based on the ground of the absence of the defendant. Gaines v. Alexander, 69 Ga. App. 512, 26 S.E.2d 130, 1943 Ga. App. LEXIS 127 (1943). Refusal to grant continuance not error where movant lacked due diligence. - Where a period of two hours and a half elapsed after the emergency involving a party seeking a continuance and before the case was called, during which time the party’s counsel did not communicate with the client, nor the client with the attorney, or make any effort to make a legal showing for continuance in accordance with previous notice given them by the court requiring strict legal presentation at proof under oath for continuance, it was not error to refuse to grant a continuance. Stanley v. Amos, 79 Ga. App. 297, 53 S.E.2d 568, 1949 Ga. App. LEXIS 641 (1949). Where the defense counsel’s moves for a continuance were based on the fact that defense counsel did not receive a tape or transcript of the committal hearing until approximately 24 hours before the trial and as a consequence defense counsel was unable adequately to prepare to crossexamine or impeach the prosecution’s witnesses, but defense counsel was informed some days earlier that defense counsel might pick up the tape and transcript at defense counsel’s convenience, and de-

fense counsel did not do so until the day preceding the trial, and by defense counsel’s own admission defense counsel was present at the committal hearing and therefore can be presumed to know what took place there, the court did not abuse its discretion in denying the motion. Gaskin v. State, 166 Ga. App. 331, 303 S.E.2d 778, 1983 Ga. App. LEXIS 2157 (1983). Trial court did not abuse its discretion in denying a subcontractor’s motion for a continuance of a summary judgment hearing as a surety raised a statute of limitations defense more than three months before the hearing and the subcontractor did not attempt to conduct further discovery after the defense was raised. Masonry Specialists of Ga., Inc. v. United States Fid. & Guar. Co., 273 Ga. App. 774, 616 S.E.2d 103, 2005 Ga. App. LEXIS 443 (2005). Continuance properly denied where sole ground was lack of opportunity for leading counsel to prepare. - Judge did not abuse judicial discretion in overruling a motion for a continuance of a contempt hearing based solely on an alleged lack of opportunity of leading counsel to prepare for trial, nothing being shown as to inability or lack of opportunity of other attorneys in the case to prepare for such trial. Alred v. Celanese Corp. of America, 205 Ga. 499, 54 S.E.2d 225, 1949 Ga. LEXIS 395 (1949), cert. denied, 338 U.S. 937, 70 S. Ct. 346, 94 L. Ed. 578 (1950). Attorney’s delay in going to wrong courthouse. - It was not an abuse of discretion to deny plaintiff’s request for a continuance because plaintiff’s attorney went to the wrong courthouse for a hearing on defendant’s motion for summary judgment. Purvis v. Ballantine, 226 Ga. App. 246, 487 S.E.2d 14. Continuance properly denied where intervenor claimed insufficient notice of action involving state. - All applications for a continuance are addressed to the sound legal discretion of the court, and in all cases the party making the application for a continuance must show that the party has exercised due diligence; accordingly, in a civil action to which the state is a party, and which is

thus entitled to priority of hearing, the court did not err in failing to grant a continuance on motion of the intervenor, based on the sole ground that the intervenor had been absent from the state and had not heard of the case in time to make preparation for the hearing. Beazley v. De Kalb County, 87 Ga. App. 910, 75 S.E.2d 657, 1953 Ga. App. LEXIS 879, rev’d, 210 Ga. 41, 77 S.E.2d 740, 1953 Ga. LEXIS 479 (1953). Refusal to set aside order dismissing motion for new trial proper. - Where plaintiff fails to present a brief of evidence on the hearing of plaintiff’s motion for a new trial, and there is no merit to plaintiff’s allegations as to an agreement to postpone the hearing, the trial judge properly refuses to set aside an order dismissing the plaintiff’s motion for new trial. Davenport v. Davenport, 218 Ga. 475, 128 S.E.2d 772, 1962 Ga. LEXIS 537 (1962). Refusal to grant continuance for second attempt at arbitration. - Where an initial attempt at arbitration, as provided for by the lease agreement in question, was unsuccessful, the court was within its discretion to deny a motion for continuance which requested an opportunity for a second attempt at arbitration. Nunn v. Taylor, 177 Ga. App. 44, 338 S.E.2d 453, 1985 Ga. App. LEXIS 2467 (1985). Continuance denied for lack of diligence. - Where appellants were not diligent in obtaining desired discovery, their failure to obtain discovery did not entitle them to a continuance of a hearing on a motion for summary judgment. Dobbs v. Cobb E.N.T. Assocs., 165 Ga. App. 238, 299 S.E.2d 141, 1983 Ga. App. LEXIS 1828 (1983). Denial of continuation of parental rights termination proceeding proper. - Trial court’s denial of a parent’s motion for a continuance of a paren-

tal rights termination proceeding was not shown to be erroneous where the parent was served with a copy of the petition to terminate approximately four months before the termination hearing, an amended petition merely added the name of the paternal grandparent because the grandparent had legal custody of the child at the time, and the trial court indicated that it would not hear anything not included in the original petition; the parent was unable to show any harm suffered as a result of the trial court’s failure to grant the continuance. In the Interest of A.S.R.H., 265 Ga. App. 30, 593 S.E.2d 59, 2004 Ga. App. LEXIS 3 (2004). A father’s motion for a continuance so that he could obtain the results of a paternity test was properly denied, as the father failed to show harm from the decision; this was particularly true in light of a holding affirming the termination of the father’s parental rights. In the Interest of S.S.G.A., 285 Ga. App. 276, 645 S.E.2d 724, 2007 Ga. App. LEXIS 508 (2007). A parent’s potential for overcoming alcoholism, which had existed throughout the four years the children had been in foster care, was insufficient to require the grant of a continuance in a parental rights termination proceeding. In re C.M., 179 Ga. App. 508, 347 S.E.2d 328, 1986 Ga. App. LEXIS 1943 (1986). Petitioner’s attorney’s motion to continue habeas corpus proceeding properly granted. - Where, in a habeas corpus action, petitioner’s attorney has been unable to confer with the client and is unprepared for lack of time due to the unlawful transfer of and improper delay in returning the client to the proper prison, the attorney’s request for a continuance should be granted. Hardwick v. Gooding, 233 Ga. 322, 210 S.E.2d 794, 1974 Ga. LEXIS 752 (1974).

RESEARCH REFERENCES Am. Jur. 2d. 17 Am. Jur. 2d, Continuance, § 13. C.J.S. 17 C.J.S., Continuances, § 6. ALR. Physical condition or conduct of party,

his family, friends, or witnesses during trial, tending to arouse sympathy of jury, as ground for continuance or mistrial, 131 A.L.R. 323. Appealability of order granting or refusing stay or continuance under federal civil

relief act because of litigant’s military service, 34 A.L.R.2d 1149. Party litigant’s absence in civil case because of illness of relative or member of family, as ground for continuance, 47 A.L.R.2d 1058. Stay of civil proceedings pending determinations of action in federal court in same state, 56 A.L.R.2d 335. Amendment of pleading before trial with respect to amount or nature of relief sought as ground for continuance, 56 A.L.R.2d 650.

Continuance of civil case because of illness or death of party, 68 A.L.R.2d 470. Hostile sentiment or prejudice as ground for continuance in civil case, 68 A.L.R.2d 540. Admissions to prevent continuance sought to secure testimony of absent witness in civil case, 15 A.L.R.3d 1272. Continuance of case because of illness of expert witness, 18 A.L.R.6th 509.