Summerlin v. Dent , 36 Ga. 54 ( 1867 )

Harris, J.

We refrain from the expression of any opinion upon the merits of the case in the voluminous record before us, and which were so elaborately argued by counsel, as the case can properly be disposed of for the present by the decision of the question as to the continuance moved for below.

An importance w;as given to the facts that Mr. Dougherty was the original counsel of Summerlin and that Summerlin had employed him only, and not Mr. Hill, which other facts in the ease should have greatly diminished. Whilst the name of Mr. B. H. Hill does not appear to any of the papers, nor is marked on the docket (the mere memorandum book of the Judge), as solicitor for the complainant, the fact that he had appeared and conducted on a previous trial (Mr. Dougherty not being at the Court) the cause as leading or controlling counsel is not denied. The testimony besides shows that by a recent arrangement, just before the last trial, Mr. Dougherty had withdrawn entirely from the case, abandoned practice in that Court, and had turned over his entire fee and the case to Mr. Hill. Summerlin, though he had not employed Mr. Hill, was entirely satisfied with his representing him. In consequence of the sickness of Mr. Hills family, he applied by telegram to the Judge for leave of absence from the Court in which the suit was pending, and leave of absence was granted.

When application was made by the local junior counsel .associated with Mr. Hill for a continuance of the cause, on the ground of his absence with leave, it ought to have been allowed. Being absent with leave, all cases in which Mr. Hill was leading or controlling counsel were necessarily exempt from being tried during his absence, without the assent of the complainant and other counsel that it should be.

Let new trial be had.