2020 Georgia Code
Title 9 - Civil Practice
Chapter 10 - Civil Practice and Procedure Generally
Article 7 - Continuances
§ 9-10-154. Grounds for Continuance - Party Providentially Prevented From Attendance; Statement of Counsel

If either party is providentially prevented from attending the trial of a case, and the counsel of the absent party will state in his place that he cannot go safely to trial without the presence of the absent party, the case shall be continued, provided the continuances of the party have not been exhausted.

(Orig. Code 1863, § 3453; Code 1868, § 3473; Code 1873, § 3524; Code 1882, § 3524; Civil Code 1895, § 5131; Civil Code 1910, § 5717; Code 1933, § 81-1412.)

- Corresponding provision relating to criminal procedure, § 17-8-23.

- For annual survey on trial practice and procedure, see 42 Mercer L. Rev. 469 (1990).

General manager of a corporation is not a party within the meaning of this section. Persons-Phillips-Oxford Co. v. Morris Fertilizer Co., 20 Ga. App. 100, 92 S.E. 545 (1917) (see O.C.G.A. § 9-10-154).

Plaintiff cannot have a continuance because of absence of defendant. Boardman v. Taylor, 66 Ga. 638 (1881).

- Where there have been several continuances of the case because of the illness of a party, the court does not abuse its discretion in overruling a motion to again continue for the same cause. Bomar v. Equitable Mtg. Co., 121 Ga. 466, 49 S.E. 267 (1904); Porter v. Porter, 17 Ga. App. 456, 87 S.E. 707 (1916); Heath v. Edwards, 29 Ga. App. 28, 113 S.E. 46 (1922); Smith v. Williamson, 29 Ga. App. 103, 114 S.E. 86 (1922).

- Where a showing for a continuance is made, based upon the providential absence of a party, and evidence is introduced which denies that the absence of the party is due to providential cause, and this testimony is sufficient to rebut the showing for a continuance, the determination of the issue of fact thus raised is a matter for the trial judge, and the exercise of judicial discretion cannot be said to have been abused if there was sufficient evidence to support the counter-showing. Owen v. Sweat, 155 Ga. 559, 117 S.E. 749 (1923).

- The trial court does not err in refusing to grant a continuance based on the defendant's alleged inability to appear in court due to physical infirmities where it does not appear that the defendant's condition is expected to improve so as to enable the defendant to be present at a future trial of the case. Allen v. Brookshire, 169 Ga. App. 391, 312 S.E.2d 862 (1984).

- Failure of defendant's counsel to make statement required by O.C.G.A. § 9-10-154 and to show that defendant's condition was expected to improve justified denial of motion for continuance. Wasson v. Cox, 176 Ga. App. 684, 337 S.E.2d 445 (1985).

- Trial court did not abuse its discretion in denying an injured party's motion for a continuance as the injured party did not attach the military orders to the motion and the counsel's assertion that the injured party had received orders to report for military duty were not evidence of any service requirements. King v. Irvin, 273 Ga. App. 64, 614 S.E.2d 190 (2005).

In a proceeding to legitimate a child, the trial court did not abuse the court's discretion by denying the petitioning parent's motion for a continuance as seven continuances had already been granted in the case, five of which were attributable to the petitioning parent, and the trial court had scheduled the trial to accommodate the petitioning parent's surgery schedule, which was to have occurred after the trial. Appling v. Tatum, 295 Ga. App. 78, 670 S.E.2d 795 (2008).

Trial court did not abuse its discretion by denying a client's motion for a continuance because the client was not absent due to the providential cause contemplated by O.C.G.A. § 9-10-154 but for failing to maintain communication about a pending case; the client failed to maintain contact with counsel after having been personally served with notice that a law firm had terminated a stipulation to pursue alternative dispute resolution, and that demonstrated a lack of the due diligence required to obtain a continuance under O.C.G.A. § 9-10-166. McLellan v. Chilivis, 302 Ga. App. 562, 692 S.E.2d 26 (2010).

Superior court did not abuse the court's discretion in denying a stepson's amended motion for continuance because the stepson failed to present any evidence under oath that the stepson was prevented from attending the trial of the case; the attorney's assertions in the amended motion for continuance regarding the stepson's health were not evidence. Bocker v. Crisp, 313 Ga. App. 585, 722 S.E.2d 186 (2012).

- Where defendant was very old and helpless on account of sickness, which was the defendant's last illness, would never be able to attend court or to give depositions, and would be of no help to the defendant's counsel were the defendant present in court at the trial, the court did not err, in the exercise of sound discretion, in denying the defendant's motion to continue based on the ground of the absence of the defendant. Gaines v. Alexander, 69 Ga. App. 512, 26 S.E.2d 130 (1943).

- Where a physician's affidavit to the effect that the wife was suffering from a medical condition and appearance in court would be detrimental to her health, whether a continuance should be granted was a matter within the legal discretion of the trial judge. Williford v. Williford, 230 Ga. 543, 198 S.E.2d 181 (1973).

Physician's letter which stated that because of her physical condition defendant was unable to bear up under the stress of legal proceedings and that "if she continues on her present course I think she may be able to testify in approximately six months" did not entitle defendant to a continuance absent the statement required by O.C.G.A. § 9-10-154. Worn v. Warren, 191 Ga. App. 448, 382 S.E.2d 112 (1989).

- Partial denial of a father's motion for a continuance in proceedings to terminate the father's parental rights was not an abuse of discretion as the father did not object to the trial court's proposal and decision to allow a mother to testify without delay, and the father failed to show that additional time would have benefitted the father; the termination of the father's parental rights was based on: (1) a divorce decree permanently prohibiting the father from all contact with the child; and (2) the father's conviction of soliciting someone to murder the child. In the Interest of M.H.W., 275 Ga. App. 586, 621 S.E.2d 779 (2005).

Cited in Sterling v. Mayor of St. Marys, 137 Ga. 177, 73 S.E. 374 (1911); Durham v. Durham, 160 Ga. 586, 128 S.E. 788 (1925); Odom v. Attaway, 41 Ga. App. 51, 152 S.E. 148 (1930); Dyar v. Dyar, 55 Ga. App. 226, 189 S.E. 721 (1937); Mosley v. Bridges, 65 Ga. App. 64, 15 S.E.2d 260 (1941); Bass v. Thigpen, 73 Ga. App. 279, 36 S.E.2d 187 (1945); Carver v. Cranford, 122 Ga. App. 100, 176 S.E.2d 272 (1970); Cochran v. McCollum, 136 Ga. App. 558, 222 S.E.2d 60 (1975); George v. Handshakers, Inc., 140 Ga. App. 641, 231 S.E.2d 575 (1976); Sirmans v. Jones, 142 Ga. App. 144, 235 S.E.2d 543 (1977); Osborne v. Osborne, 240 Ga. 321, 240 S.E.2d 704 (1977); Hill v. Jackson, 147 Ga. App. 704, 250 S.E.2d 7 (1978); Opatut v. Guest Pond Club, Inc., 188 Ga. App. 478, 373 S.E.2d 372 (1988); Americani v. Sidky, 199 Ga. App. 823, 406 S.E.2d 259 (1991); Dimarco's, Inc. v. Neidlinger, 207 Ga. App. 526, 428 S.E.2d 431 (1993).

RESEARCH REFERENCES

Am. Jur. 2d.

- 17 Am. Jur. 2d, Continuance, §§ 14, 18 et seq., 26.

- 17 C.J.S., Continuance, §§ 41, 51.

- Suits and remedies against alien enemies, 157 A.L.R. 1449.

Validity, construction, and effect of provisions in life or accident policy in relation to military service, 36 A.L.R.2d 1018.

Amendment of pleading with respect to parties or their capacity as ground for continuance, 67 A.L.R.2d 477.

Continuance of civil case because of illness or death of party, 68 A.L.R.2d 470.