I. I am not able to concur in the majority opinion. The appeal is from the final judgment upon the verdict of the jury in favor of the defendant. The error assigned is upon the ruling of the court in denying a preliminary motion by plaintiff for the exclusion of one of defendant's attorneys from participation in the trial. The ruling complained of was predicated in the court below upon two grounds: (1) That the motion was filed too late; (2) that the facts alleged therein were not sustained by sufficient proof.
The holding of the majority is that the trial court abused its discretion upon each proposition. I am unable to reach such conclusion. The motion was filed after the case was called for trial to a jury. It presented matters of such great importance that an adequate hearing thereon might properly require a very considerable time. This would necessarily result either in holding the selection of the jury in abeyance, or else in a continuance of the case. The case had been at issue for some time. Whether an adequate excuse for the delay of filing was shown, was a question peculiarly within the discretion of the trial court. The excuse offered was that counsel for the plaintiff, a long time previously, had advised Slaymaker that the motion would be filed unless he voluntarily withdrew from the case. Was this excuse so adequate and so compelling as to divest the trial court of its power of discretion? When such warning was given by plaintiff's counsel, it was met with prompt refusal. Nor does it appear that there was ever a moment thereafter when plaintiff or his counsel had reason to believe that defendant's counsel would voluntarily withdraw. What was the efficacy of such warning? It was not a compliance with any rule of practice or pleading. In military parlance, it might be deemed a *Page 1171 "demonstration," or "gesture." It implied a mere threat. The warning purported to be made as a matter of courtesy to counsel under attack. As such, it was purely gratuitous. Such counsel was not entitled to warning, nor had he asked for grace. As a courtesy, it had been promptly rebuffed. What was due from the plaintiff was neither warning nor courtesy, but the motion itself. The defendant was entitled to a timely filing of such motion and a disclosure of the grounds thereof, and was entitled to a reasonable time to meet the same. Such right of the defendant's was not met by a mere warning that a motion would be filed on the eve of trial. I am constrained to the view, therefore, that the discretion of the trial court was not divested, and that it was fairly exercised in the ruling that the motion came too late.
II. On the question of fact, I am of the opinion also that the evidence was fairly in conflict, and that the finding of fact by the trial judge should be sustained on that ground. The method of trial is not to be commended. The importance of the question involved would have justified a more adequate procedure. Affidavits and professional statements are not a satisfactory form of evidence upon which to settle an issue so important and so sharply defined. But the parties themselves chose the method, and mutually acquiesced therein. Each of them introduced professional statements, without objection by the other. They were doubtless impelled to this course by the fact that they were holding a jury in waiting. This emphasizes somewhat the impropriety in the previous delay in filing the motion. Inasmuch as the proofs were received by the court in the form of affidavit and professional statements, without objection by either party, I see no ground for us to say that the one was any higher order of evidence than the other. In any event, the relative weight or credibility of affidavit and professional statement was necessarily a question for the trial court. It was bound to pass thereon. For us to hold that he should have decided otherwise on the question of fact is to try such issue de novo here. I feel constrained, therefore, to say that the record before us does not justify a reversal on error.
PRESTON and STEVENS, JJ., join herein. *Page 1172