2020 Georgia Code
Title 9 - Civil Practice
Chapter 10 - Civil Practice and Procedure Generally
Article 7 - Continuances
§ 9-10-167. Continuance in Discretion of Court; Countershowing to Motion for Continuance

1. All applications for continuances are addressed to the sound legal discretion of the court and, if not expressly provided for, shall be granted or refused as the ends of justice may require.
2. In all cases the presiding judge may, in his discretion, admit a countershowing to a motion for a continuance and, after a hearing, may decide whether the motion shall prevail.

(Orig. Code 1863, § 3460; Code 1868, § 3480; Ga. L. 1871-72, p. 49, § 1; Ga. L. 1872, p. 41, § 1; Code 1873, § 3531; Code 1882, § 3531; Civil Code 1895, § 5138; Penal Code 1895, § 966; Civil Code 1910, § 5724; Penal Code 1910, § 992; Code 1933, § 81-1419.)

- Corresponding provision relating to criminal procedure, § 17-8-22.

JUDICIAL DECISIONS

Order granting or denying continuance not reversible absent clear abuse of discretion.

- Trial court has a right to exercise sound discretion in passing on motions for continuance, and an order granting or denying a continuance will not be reversed unless such discretion has been manifestly abused. Gaines v. Alexander, 69 Ga. App. 512, 26 S.E.2d 130 (1943); State Hwy. Dep't v. Peavy, 77 Ga. App. 308, 48 S.E.2d 478 (1948); Stanley v. Amos, 79 Ga. App. 297, 53 S.E.2d 568 (1949); Nichols v. Heffner, 222 Ga. 706, 152 S.E.2d 393 (1966); Smith v. Davis, 121 Ga. App. 704, 175 S.E.2d 28 (1970); McCorquodale v. Stynchcombe, 239 Ga. 138, 236 S.E.2d 486, cert. denied, 434 U.S. 975, 98 S. Ct. 534, 54 L. Ed. 2d 467 (1977); Keno v. Alside, Inc., 148 Ga. App. 549, 251 S.E.2d 793 (1978).

The continuance or postponement of a case is a discretionary matter and will not be controlled unless manifestly abused. Davis v. Barnes, 158 Ga. App. 89, 279 S.E.2d 330 (1981).

A motion for continuance is addressed to the sound discretion of the trial court. Absent a showing that it has been abused, that discretion will not be controlled. Clark v. State, 159 Ga. App. 438, 283 S.E.2d 666 (1981); Turner v. City of Nashville, 177 Ga. App. 649, 340 S.E.2d 619 (1986).

All continuances for which express provision has not been made are granted or denied in the discretion of the trial court, and an appellate court will not reverse such decisions absent a clear abuse of discretion. This rule holds true in situations where a person is both a criminal and civil defendant. Payton v. Green, 179 Ga. App. 438, 346 S.E.2d 884 (1986).

In the absence of the transcript of the hearing on appellant's motion for a continuance or other showing by appellant that the trial court abused its discretion by denying the motion, the decision will not be reversed. Payton v. Green, 179 Ga. App. 438, 346 S.E.2d 884 (1986); Matthews v. Dorsey, 218 Ga. App. 545, 462 S.E.2d 452 (1995).

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 the court's discretion by denying a defendant's motion for a continuance because the court instructed the plaintiff to ensure that the plaintiff's experts were made available to the defendant for interviewing, and the defendant indicated that the defendant would be able to accomplish the interviews on the evening of the first day of trial. LN West Paces Ferry Assocs., LLC v. McDonald, 306 Ga. App. 641, 703 S.E.2d 85 (2010).

- 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).

- To entitle a party to a continuance, evidence of some character under oath must be presented that the absent party was in fact providentially prevented from attending the trial. Stanley v. Amos, 79 Ga. App. 297, 53 S.E.2d 568 (1949).

- Where defendant, having had two verdicts rendered in the defendant's favor, did not appear at the third (new) trial, even after a continuance had been granted, as the defendant had left the county and defense counsel was unable to locate the defendant, it was not error for the trial judge to deny another motion to continue and, after a verdict for the plaintiff, enter judgment in plaintiff's favor. Smith v. Randall, 52 Ga. App. 692, 184 S.E. 360 (1936).

- 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 defense 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 period of two hours and a half elapsed after the emergency involving a party seeking a continuance and before the case was called, during which time the party's counsel did not communicate with the client, nor the client with the attorney, or make any effort to make a legal showing for continuance in accordance with previous notice given them by the court requiring strict legal presentation at proof under oath for continuance, it was not error to refuse to grant a continuance. Stanley v. Amos, 79 Ga. App. 297, 53 S.E.2d 568 (1949).

Where the defense counsel's moves for a continuance were based on the fact that defense counsel did not receive a tape or transcript of the committal hearing until approximately 24 hours before the trial and as a consequence defense counsel was unable adequately to prepare to cross-examine or impeach the prosecution's witnesses, but defense counsel was informed some days earlier that defense counsel might pick up the tape and transcript at defense counsel's convenience, and defense counsel did not do so until the day preceding the trial, and by defense counsel's own admission defense counsel was present at the committal hearing and therefore can be presumed to know what took place there, the court did not abuse its discretion in denying the motion. Gaskin v. State, 166 Ga. App. 331, 303 S.E.2d 778 (1983).

Trial court did not abuse its discretion in denying a subcontractor's motion for a continuance of a summary judgment hearing as a surety raised a statute of limitations defense more than three months before the hearing and the subcontractor did not attempt to conduct further discovery after the defense was raised. Masonry Specialists of Ga., Inc. v. United States Fid. & Guar. Co., 273 Ga. App. 774, 616 S.E.2d 103 (2005).

- Judge did not abuse judicial discretion in overruling a motion for a continuance of a contempt hearing based solely on an alleged lack of opportunity of leading counsel to prepare for trial, nothing being shown as to inability or lack of opportunity of other attorneys in the case to prepare for such trial. Alred v. Celanese Corp. of America, 205 Ga. 499, 54 S.E.2d 225 (1949), cert. denied, 338 U.S. 937, 70 S. Ct. 346, 94 L. Ed. 578 (1950).

- It was not an abuse of discretion to deny plaintiff's request for a continuance because plaintiff's attorney went to the wrong courthouse for a hearing on defendant's motion for summary judgment. Purvis v. Ballantine, 226 Ga. App. 246, 487 S.E.2d 14 (1997).

- All applications for a continuance are addressed to the sound legal discretion of the court, and in all cases the party making the application for a continuance must show that the party has exercised due diligence; accordingly, in a civil action to which the state is a party, and which is thus entitled to priority of hearing, the court did not err in failing to grant a continuance on motion of the intervenor, based on the sole ground that the intervenor had been absent from the state and had not heard of the case in time to make preparation for the hearing. Beazley v. De Kalb County, 87 Ga. App. 910, 75 S.E.2d 657, rev'd on other grounds, 210 Ga. 41, 77 S.E.2d 740 (1953).

- Where plaintiff fails to present a brief of evidence on the hearing of plaintiff's motion for a new trial, and there is no merit to plaintiff's allegations as to an agreement to postpone the hearing, the trial judge properly refuses to set aside an order dismissing the plaintiff's motion for new trial. Davenport v. Davenport, 218 Ga. 475, 128 S.E.2d 772 (1962).

- Where an initial attempt at arbitration, as provided for by the lease agreement in question, was unsuccessful, the court was within its discretion to deny a motion for continuance which requested an opportunity for a second attempt at arbitration. Nunn v. Taylor, 177 Ga. App. 44, 338 S.E.2d 453 (1985).

- Where appellants were not diligent in obtaining desired discovery, their failure to obtain discovery did not entitle them to a continuance of a hearing on a motion for summary judgment. Dobbs v. Cobb E.N.T. Assocs., 165 Ga. App. 238, 299 S.E.2d 141 (1983).

- Trial court's denial of a parent's motion for a continuance of a parental rights termination proceeding was not shown to be erroneous where the parent was served with a copy of the petition to terminate approximately four months before the termination hearing, an amended petition merely added the name of the paternal grandparent because the grandparent had legal custody of the child at the time, and the trial court indicated that it would not hear anything not included in the original petition; the parent was unable to show any harm suffered as a result of the trial court's failure to grant the continuance. In the Interest of A.S.R.H., 265 Ga. App. 30, 593 S.E.2d 59 (2004).

A father's motion for a continuance so that he could obtain the results of a paternity test was properly denied, as the father failed to show harm from the decision; this was particularly true in light of a holding affirming the termination of the father's parental rights. In the Interest of S.S.G.A., 285 Ga. App. 276, 645 S.E.2d 724 (2007).

A parent's potential for overcoming alcoholism, which had existed throughout the four years the children had been in foster care, was insufficient to require the grant of a continuance in a parental rights termination proceeding. In re C.M., 179 Ga. App. 508, 347 S.E.2d 328 (1986).

- Where, in a habeas corpus action, petitioner's attorney has been unable to confer with the client and is unprepared for lack of time due to the unlawful transfer of and improper delay in returning the client to the proper prison, the attorney's request for a continuance should be granted. Hardwick v. Gooding, 233 Ga. 322, 210 S.E.2d 794 (1974).

Cited in Kersey v. Barfield, 46 Ga. App. 442, 167 S.E. 925 (1933); Metropolitan Life Ins. Co. v. Hale, 47 Ga. App. 674, 171 S.E. 306 (1933); Blount v. Dean, 57 Ga. App. 332, 195 S.E. 287 (1938); Travelers Ins. Co. v. Hill, 76 Ga. App. 640, 46 S.E.2d 755 (1948); Register v. Kandlbinder, 231 Ga. 786, 204 S.E.2d 145 (1974); Dalton v. Vanderkooi, 134 Ga. App. 381, 214 S.E.2d 670 (1975); Brown v. Georgia Power Co., 134 Ga. App. 784, 216 S.E.2d 613 (1975); Rosenbaum v. Dunn, 136 Ga. App. 870, 222 S.E.2d 596 (1975); 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); Hall v. Elliott, 150 Ga. App. 323, 257 S.E.2d 311 (1979); Graham Bros. Constr. Co. v. C.W. Matthews Contracting Co., 159 Ga. App. 546, 284 S.E.2d 282 (1981); Turner v. National Bank, 160 Ga. App. 165, 286 S.E.2d 500 (1981); Jones v. Rich's Div. of Federated Dep't Stores, Inc., 170 Ga. App. 687, 317 S.E.2d 668 (1984); Adams v. Hill, 177 Ga. App. 492, 340 S.E.2d 27 (1986); Jenkins v. State, 180 Ga. App. 583, 349 S.E.2d 774 (1986); Hawkins v. Grady County Bd. of Tax Assessors, 180 Ga. App. 834, 350 S.E.2d 790 (1986); Washburn v. Sardi's Restaurants, 191 Ga. App. 307, 381 S.E.2d 750 (1989); Hill v. State, 259 Ga. 557, 385 S.E.2d 404 (1989); Loggins v. Mitchell, 201 Ga. App. 358, 411 S.E.2d 98 (1991); Simmons v. Simmons, 265 Ga. 183, 453 S.E.2d 696 (1995); Collins v. Kiah, 218 Ga. App. 484, 462 S.E.2d 158 (1995); GMC v. Blake, 237 Ga. App. 426, 515 S.E.2d 166 (1999).

RESEARCH REFERENCES

Am. Jur. 2d.

- 17 Am. Jur. 2d, Continuance, § 2.

- 17 C.J.S., Continuances, § 6.

- Physical condition or conduct of party, his family, friends, or witnesses during trial, tending to arouse sympathy of jury, as ground for continuance or mistrial, 131 A.L.R. 323.

Appealability of order granting or refusing stay or continuance under federal civil relief act because of litigant's military service, 34 A.L.R.2d 1149.

Party litigant's absence in civil case because of illness of relative or member of family, as ground for continuance, 47 A.L.R.2d 1058.

Stay of civil proceedings pending determinations of action in federal court in same state, 56 A.L.R.2d 335.

Amendment of pleading before trial with respect to amount or nature of relief sought as ground for continuance, 56 A.L.R.2d 650.

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

Hostile sentiment or prejudice as ground for continuance in civil case, 68 A.L.R.2d 540.

Admissions to prevent continuance sought to secure testimony of absent witness in civil case, 15 A.L.R.3d 1272.

Continuance of case because of illness of expert witness, 18 A.L.R.6th 509.