The petition for certiorari failed to show that any error of law was committed by the trial judge, and the judge of the superior court did not err in dismissing it.
DECIDED MAY 20, 1949. Mrs. Eloise Stanley filed a petition for writ of certiorari to the judge of the Superior Court of Bibb County alleging, among other things, substantially the following: G. F. Amos filed an action in the Municipal Court of the City of Macon to recover a judgment against a contractor and a special lien on property of Mrs. Eloise Stanley for labor thereon, to which the defendant filed her answer. On April 15, 1948, the judge of said court directed a verdict for the plaintiff, on which judgment was entered. The defendant made an oral motion for a new trial, which was amended in writing and overruled on every ground. The case was first set for Monday, April 12, 1948, when both parties requested that it not be called for trial earlier than Wednesday morning, April 14, at 10 o'clock a. m., the parties agreeing in advance to strike a jury, which was done, and the judge agreed to call the jury back on Wednesday. The petitioner contends that she never did announce ready for trial, but arrangements were made tentatively by her counsel with full expectations of trying the case. The case was not tried Wednesday *Page 298 morning because of the trial of another case, and the case was set for Thursday afternoon, April 15, 1948, at 3 o'clock, the judge stating to the defendant's husband and her counsel, who were present in court, that they would be required to make strict proof under oath for a continuance in support of her motion made at the opening of court Wednesday, April 14, or that she would have to go to trial. Mrs. Stanley's counsel fully expected to comply with the judge's ruling and so told the husband of the defendant, petitioner in certiorari, who heard the judge rule that he should have his wife present at the appointed time or in lieu thereof an affidavit from a doctor that Mrs. Stanley was sick and unable to attend court. Mrs. Stanley decided to make appearance and try the case, but did not advise her counsel. On April 15, 1948, the day set for the trial, at 12:30 p. m., the petitioner's husband drove his truck in front of her house, to her surprise and without notice to her counsel, with an injured back due to a fall from his truck, and he suspected an injury to his hip, which was thought to be of such gravity as to prevent both from being in court at 3 o'clock. The accident caught the petitioner by surprise. She was not fully dressed, and being alarmed about her husband, she drove him to the Macon Hospital in dress not suitable for appearance in court. She telephoned her attorney and told him that her husband had perhaps suffered a broken hip, and that she was taking him to the emergency room at the Macon Hospital for an examination, and her counsel told her to let him know as soon as she could. The petitioner's husband was in said emergency room and X-ray room from 12:45 until about 3:15 p. m., when they left the hospital and went to their residence. The petitioner put her husband to bed and telephoned her attorney at his office phone as instructed. When she attempted such call, her attorney was actually engaged in trying her case, which if she had known she would have gone immediately to court. The petitioner advised the lady who received her telephone call of what had happened and was awaiting instructions as to what to do. She could have dressed and have gone to court in a very few minutes. She was close by her telephone but received no message. She did not know that her case was on trial or had been tried until the verdict had been returned and published. The petitioner's *Page 299 attorney appeared in court at 3 p. m., Thursday, April 15, 1948, without the petitioner and her vital witness, A. L. Stanley, not knowing where they were nor what the trouble was nor how serious. Her counsel stated in his place just such facts as are here shown and requested the judge to recess or delay the case for a short time until the petitioner could arrive in court or until word could be received from her. Her counsel requested permission to go to the telephone in the adjoining courtroom and call the hospital or the petitioner's residence, and the judge declined to allow such delay, saying that the petitioner's counsel could have and ought to have proof under oath that the petitioner was providentially hindered or kept away from court, and in the absence of such proof he required the petitioner's counsel to go immediately into the trial. Her attorney tried to explain to the judge that the situation was a emergency thrust upon him unexpectedly, and that he could not go to trial safely without his client being present, and moved the court to declare a mistrial because of the providential absence of Mrs. Stanley, which motion was denied. The telephone message from the petitioner to her attorney was received by the attorney's secretary and she made two attempts to telephone Judge Feagin, and neither time was the telephone answered, although the bell in Judge Feagin's office rang repeatedly both times so that it could be heard by the judge and deputy clerk and the deputy sheriff as well as by her attorney; and if said telephone had been answered, she would have gotten a message to and from her attorney and got to court. The reason she did not get the message was that the court, jurors, and attorneys were busy trying her case. Her counsel's secretary telephoned to the office adjoining the courtroom and the telephone was answered by M. M. Jennings, acting clerk in said court where the case was being tried, a short distance from Judge Feagin. Mr. Jennings kept said message secret from 45 minutes to one hour and until near the end of the trial to the prejudice of her case. The petitioner excepted to the direction of a verdict in favor of the plaintiff and to the overruling of her motion for a new trial.
The motion for a new trial alleged facts substantially as set forth in the petition for certiorari.
The judge of the municipal court filed his response to which *Page 300 exceptions and a traverse were filed. The judge of the superior court on oral motion of the plaintiff below dismissed the certiorari on the ground that the same did not set forth a cause of action, to which judgment Mrs. Stanley excepts. The petition for certiorari showed a lack of diligence on the part of the plaintiff (defendant in the trial court) and her counsel. The case in the trial court had been started on Monday morning, when a jury had been stricken, and was adjourned until the following Wednesday morning. On Wednesday morning when it appeared that another case was on trial, the parties and counsel in this case were ordered back at 3 p. m. on Thursday. The trial judge stated on Wednesday morning that the defendant and her counsel "would be required to make a strict legal presentation of proof under oath for continuance," in the absence of which the case would be tried. The defendant's husband was in court and heard this announcement and communicated it to his wife. After the defendant's husband sustained a fall from his truck and suspected an injury to his hip, about 12:30 p. m. on Thursday, and his wife carried him to the hospital, a period of two hours and a half elapsed before the case was called at 3 o'clock, during which time counsel did not communicate with his client, nor she with him, or make any effort, so far as the petition for certiorari discloses, to make a legal showing for continuance in accordance with the previous notice given them by the court. These facts appear from the petition for certiorari.
Code § 81-1419 provides that "All applications for continuances are addressed to the sound legal discretion of the court." Code § 81-1416 is as follows: "In all cases, the party making an application for a continuance must show that he has used due diligence." The discretion of a trial judge in granting or refusing a continuance will not be disturbed by the appellate court unless such discretion was manifestly and clearly abused.Clay v. Barlow, 73 Ga. 787 (2); Betenbo v. Brooks,17 Ga. App. 754 (88 S.E. 411). "To entitle a party to a continuance . . evidence of some character, under oath, must be presented that *Page 301 the absent party was in fact `providentially prevented from attending at the trial.' A statement by counsel of the absent party in this case, that `he had received a letter from his client advising him that he was ill and could not attend court,' was not a sufficient showing in support of that ground of the motion; and there was no error in overruling the motion for a continuance." Covington v. Case Threshing Machine Co.,26 Ga. App. 781 (107 S.E. 370). See also Cavender v. Atkins,2 Ga. App. 173 (58 S.E. 332); O'Barr v. Alexander,37 Ga. 195.
While the petition for certiorari seems to undertake to assign error on the direction of the verdict against the defendant, an admission is made therein that the verdict was proper unless the petitioner was deprived of her constitutional right to be present when the case was tried. Was the petitioner denied due process of law because of her failure to be in court or to make a legal showing for continuance, as contended by the plaintiff in error? We think that she was not, under the allegations of her petition for certiorari. "When a citizen is accorded a trial in a court of justice according to the modes of procedure applicable to all cases of a similar kind, it can not be said that he has been denied `due process of law.'" Arthur v. State, 146 Ga. 827 (1) (92 S.E. 637). Also, see Sutton v. Hancock, 118 Ga. 436,442 (45 S.E. 504); King v. State, 174 Ga. 432 (163 S.E. 168).
The petition for certiorari failed to show that any error of law was committed by the trial judge, and the judge of the superior court did not err in dismissing it.
Pursuant to the act of the General Assembly, approved March 8, 1945 (Ga. L. 1945, p. 232, Code, Ann. Supp. § 24-3501), requiring that the full court consider any case in which one of the judges of a division may dissent, this case was considered and decided by the court as a whole.
Judgment affirmed. Sutton, C. J., MacIntyre, P. J., Parker,and Townsend, JJ., concur. Felton and Gardner, JJ., dissent.