William T. SHANKLE (widower), and William K. Shankle, Administrator of the Estate of Eli C. Shankle, Deceased, Petitioners,
v.
Missie G. SHANKLE (widow) et al., Respondents.
No. 73.
Supreme Court of North Carolina.
April 6, 1976.*385 Ben D. Haines, Greensboro, for petitioners-appellants.
*386 Jones & Deane, by W. R. Jones, Rockingham, for respondents-appellees.
SHARP, Chief Justice:
Respondents' first assignment of error is that the trial court forced respondents into trial without the privilege of counsel by denying their motion for a continuance.
Continuances are not favored and the party seeking a continuance has the burden of showing sufficient grounds for it. G.S. 1A-1, Rule 40(b) provides: "No continuance shall be granted except upon application to the court. A continuance may be granted only for good cause shown and upon such terms and conditions as justice may require." Considering the myriad circumstances which might be urged as grounds for a continuance the Rule wisely makes no attempt to enumerate them but leaves it to the judge to determine, in each case, whether "good cause" for a continuance has been shown. Thus, a motion to continue is addressed to the sound discretion of the trial judge, who should determine it "as the rights of the parties require under the circumstances." 7 Strong's N.C. Index 2d Trial § 3 (1968). However, "this discretion is not unlimited, and must not be exercised absolutely, arbitrarily, or capriciously, but only in accordance with fixed legal principles. . . ." 17 C.J.S. Continuances § 5 (1963).
Further, before ruling on a motion to continue the judge should hear the evidence pro and con, consider it judicially and then rule with a view to promoting substantial justice. The rule has been well stated as follows:
"In passing on the motion the trial court must pass on the grounds urged in support of it, and also on the question whether the moving party has acted with diligence and in good faith. In reaching its conclusion the court should consider all the facts in evidence, and not act on its own mental impression or facts outside the record, although. . . it may take into consideration facts within its judicial knowledge.. . . The motion should be granted where nothing in the record controverts a sufficient showing made by the moving party, but since motions for continuance are generally addressed to the sound discretion of the trial court . . . a denial of the motion is not an abuse of discretion where the evidence introduced on the motion for a continuance is conflicting or insufficient.. . . The chief consideration to be weighed in passing upon the application is whether the grant or denial of a continuance will be in furtherance of substantial justice." Id. § 97.
In this case nothing in the record contradicts respondent Newnan Shankle's affidavit, and his statement in open court, that respondents had retained and paid Mr. Richard Clark, Attorney, to represent them at the trial on 11 February 1974; that, after conferring with the trial judge who "made strong remarks about the respondents," Mr. Clark withdrew from the case and departed the court on the day of the trial; that respondents "had no way of knowing this would happen to-day or they would have obtained other counsel"; that they were faced with circumstances beyond their control and without an attorney they could not have a fair trial. The court's findings that Mr. Clark made no motion for a continuance or "filed any legal documents" in behalf of respondents does not contradict Newnan Shankle's affidavit and statement.
In Abernethy v. Trust Co., 202 N.C. 46, 161 S.E. 705 (1932), during term, and prior to the call of the action for trial, the plaintiff's counsel moved that the case be continued because of her illness. The motion was supported by the plaintiff's affidavit and the certificates of her physician. Notwithstanding, the court found that the plaintiff's condition did not entitle her to a continuance and denied the motion. From the judgment entered upon an adverse verdict the plaintiff appealed to this Court. Inter alia, she assigned as error that she had been deprived of her right to be present at her *387 trial and to testify in her own behalf by reason of the denial of her motion for a continuance.
In the course of its serious consideration of this assignment, the Court noted (1) that the judge's finding of fact was contradicted by all the evidence in the record; and (2) that granting or refusing a continuance is in the discretion of the judge; and (3) that for this Court to review the trial judge's exercise of his discretion "`would require circumstances proving beyond a doubt hardship and injustice.'" Specifically, the Court said: "We think that in the absence of any evidence tending to contradict the affidavit of the plaintiff and the certificates of the physician, the court should have found that plaintiff was ill and for that reason unable to attend court during the May Term, 1931. . .. We do not doubt that in a proper case, this court has the power, and therefore the duty, to grant a new trial, when it appears that as the result of the refusal by the trial court to allow a motion for continuance, the moving party to the action has been deprived of his right to be present at the trial, or to have witnesses whose testimony is essential to his cause present. In the instant case, the plaintiff is entitled to a new trial for error in the charge . . .. It is therefore not necessary for us to grant a new trial upon the ground that there was prejudicial error in the refusal of the trial court to allow the motion for continuance." Id. at 48, 161 S.E. at 706.
Although in Abernethy v. Trust Co., supra, the motion to continue involved the presence of the party plaintiff at her trial, its rationale may be equally applicable to the absence of the party's attorney. In this regard, the general rule is that an attorney's withdrawal on the eve of the trial of a civil case is not ipso facto grounds for a continuance. See Annot.; "Withdrawal or discharge of counsel in civil case as a ground for continuance," 48 A.L.R.2d 1155 (1956); 17 C.J.S. Continuances § 23 (1963). In accordance with the established principles hereinbefore outlined, the decision whether to grant a continuance because the moving party's attorney has withdrawn from the case on the day of trial rests in the trial judge's discretion, to be exercised after he has determined from the facts and circumstances of the particular case, whether immediate trial or continuance will best serve the ends of justice.
The facts in Smith v. Bryant, 264 N.C. 208, 141 S.E.2d 303 (1965) are analogous to those we now consider. In Smith v. Bryant, an action for an alleged trespass causing damage to the plaintiff's land, the plaintiff sought to recover both compensatory and punitive damages from the defendant-appellant, Emma Bryant. When the case was called for trial appellant's attorney of record, Mr. Rhoe, announced that he had withdrawn from the cause because he had not been paid. The judge did not enter an order permitting the attorney to withdraw. However, he allowed him to do so notwithstanding the record disclosed "that the defendant disputes the question whether or not she has paid her attorney." Thereafter, appellant's motion to continue until she could secure other counsel was denied and the case set for trial on the following day. Unable to secure counsel overnight, appellant represented herself and judgment was entered against her.
On appeal this Court granted the defendant Bryant a new trial. The decision was that the trial judge should not have allowed appellant's attorney of record to withdraw but, "[h]aving acquiesced in counsel's withdrawal on the afternoon of January 9th, his Honor should have continued the case for a reasonable time" instead of setting the case for trial at 9:30 the next morning. After noting that any litigant would probably have had difficulty in finding a lawyer willing to undertake the defense of such an action without more time for investigation and preparation, the Court said:
"It is quite possible that Mr. Rhoe's withdrawal from this case was entirely justified; that he had given defendant adequate notice; and that she negligently or contumaciously failed to attend to her case. If these are the facts, however, the record *388 fails to show them." Id. at 212, 141 S.E.2d at 306.
Similarly, in this case, it may be that respondents' arrangement with Mr. Clark imposed no obligation upon him to try their case in all events. However, Mr. Newnan Shankle's affidavit is to the contrary, and Judge Seay failed to question either Mr. Newnan Shankle or Mr. Clark with reference to the timing and the terms of the latter's employment as counsel. Thus, so far as the record reveals, respondents had engaged an attorney who was informed of the date of the trial, had accepted a $200.00 retainer, and had accompanied respondents to the courthouse. Thereafter, after a discussion with the judge, the attorney withdrew without prior notice to respondents that his employment was contingent or conditional upon the outcome of "a discussion with the judge." Upon the convening of court the judge called this case as the first one calendared for trial and stated that he had received a motion to continue from respondent Braxton Shankle, and he would deny it. Then, as shown in the preliminary statement of facts, he summarily denied Mr. Newnan Shankle's motion for a continuance, for a pretrial conference, and for a jury trial.
Upon this record respondents were prima facie entitled to a continuance and the rationale of the decision in Smith v. Bryant, supra, dictates the decision here. We hold that the trial judge erred in denying respondents' motion to continue without exploring the matter further.
Indisputably respondents were prejudiced by having to proceed to trial without an attorney. The pleadings and the transcript of the testimony adduced at the trial disclose an intra-family controversy in which proof of crucial and disputed facts will be governed by technical rules of evidence. It is quite apparent that the trial of this case is beyond the capability of laymen and that without counsel respondents will be lost. The petitioner, a 77-year-old gentleman who is partially deaf, presented an unsolved problem to his own attorney on direct examination, and, on cross-examination, one with which the respondents were not equipped to cope. This confrontation between uncle, nieces and nephews demanded the professionalism of an attorney.
After considering the record we are entirely convinced that the Court of Appeals correctly concluded that the ends of justice require a new trial. It is patent that neither side was prepared for the trial which Judge Seay attempted to conduct; that the evidence was not developed, and the issues which will determine the merits of the controversy were never defined. The evidence fomented questions it did not answer and suggested issues the pleadings do not raise. It is noted that, although one of the respondent's assignments of error is that the court erred "in refusing to allow respondents to offer evidence tending to ripen title in respondents by adverse possession," their answer contains no plea of adverse possession. Judge Armstrong's order that this case not be calendared until pretrial orders had been filed was most certainly intended as a warning that this land suit was a minefield.
This case will be remanded to the end that a pretrial can be held, the pleadings amended, and the parties given an opportunity to use the methods of discovery available to them.
It also appears from the record that the trial court denied respondents' motion for a jury trial as a matter of course and without considering the background of the case or hearing any argument on the motion. At the next trial either petitioner or respondents, if so advised, may move for a jury trial under G.S. 1A-1, Rule 39(b), which authorizes the court, in its discretion, to order a trial by jury notwithstanding the failure of a party to request it.
Although the parties here did not demand a jury trial in the manner provided by Rule 38, all parties did request trial by jury, and the clerk noted the request in her order transferring the cause (begun as a special proceeding) to the civil issue docket of the Superior Court. Thus, all parties were not *389 only apprised of the demand, they had participated in it; and the clerk, who recorded the demand in her order of transfer, had ample notice for calendaring purposes that the case was for trial by jury. Therefore, as indicated by the Court of Appeals, in this particular factual situation, it would seem that the parties' request and the clerk's notation accomplished the purpose of Rule 38. Nothing else appearing in the interim, we anticipate that at the next trial the court will exercise its discretion in favor of a jury trial in the event one is requested.
The decision of the Court of Appeals vacating the judgment of the Superior Court and remanding the cause for a trial de novo is
Affirmed.