Had the trial court refused to grant a continuance, prior to the trial, then, under the facts of this case, its refusal to reopen the cause for the purpose of taking additional testimony would have been an abuse of discretion. However, here, the motion for a continuance was not made until May 26, 1947, the day of trial, although Carton had departed with the orchestra for California, after consulting with his attorneys, on or about May 15, 1947. Upon the motion being made, the trial court directed continuance to June 6, 1947, subject to payment, within twenty-four hours, by appellants, of seventy-five dollars and taxable costs. This continued the matter for twenty-four hours and the cause proceeded to trial on May 27, 1947.
Rem. Rev. Stat., § 322 [P.P.C. § 21-1], provides:
"A motion to continue a trial on the ground of the absence of evidence shall only be made upon affidavit showing the *Page 430 materiality of the evidence expected to be obtained, and that due diligence has been used to procure it, and also the name and residence of the witness or witnesses. The court may also require the moving party to state, upon affidavit, the evidence which he expects to obtain; and if the adverse party admit that such evidence would be given, and that it be considered as actually given on the trial, or offered and overruled as improper, the trial shall not be continued. The court, upon its allowance ofthe motion, may impose terms or conditions upon the movingparty." (Italics mine.)
The trial court having exercised its discretion in granting a continuance, contingent upon the payment of seventy-five dollars and costs, and this reasonable contingency not having been taken advantage of by appellants, I fail to see where the trial court abused its discretion in refusing to reopen the cause for the purpose of taking additional testimony.