2021 Georgia Code
Title 9 - Civil Practice
Chapter 10 - Civil Practice and Procedure Generally
Article 7 - Continuances
§ 9-10-160. Continuance for Absence of Witness; What Application to Show
All applications for continuances upon the ground of the absence of a witness shall show to the court:
- That the witness is absent;
- That he has been subpoenaed;
- That he does not reside outside of the state;
- That his testimony is material;
- That the witness is not absent by the permission, directly or indirectly, of the applicant;
- That the applicant expects he will be able to procure the testimony of the witness at the next term of the court;
- That the application is not made for the purpose of delay but to enable the party to procure the testimony of the absent witness; and
- The facts expected to be proved by the absent witness.
(Orig. Code 1863, § 3451; Code 1868, § 3471; Code 1873, § 3522; Code 1882, § 3522; Civil Code 1895, § 5129; Penal Code 1895, § 962; Civil Code 1910, § 5715; Penal Code 1910, § 987; Code 1933, § 81-1410; Ga. L. 1959, p. 342, § 1; Ga. L. 1991, p. 376, § 2.)
Cross references.- Use of depositions of absent witnesses, § 9-11-32.
Corresponding provision relating to criminal procedure, § 17-8-25.
JUDICIAL DECISIONS
Movant for a continuance must demonstrate compliance with this section by showing that: (a) the testimony of the absent witness would be material (and such testimony must be set forth); (b) the movant has made every effort to procure such testimony; (c) there are no other witnesses present by whom the movant can satisfactorily prove the same facts; and (d) the absent witness has been subpoenaed. Thomas v. Ferrier, 87 Ga. App. 666, 75 S.E.2d 284 (1953) (see O.C.G.A. § 9-10-160).
Where one of the eight statutory requirements for a continuance based upon the absence of a witness was not met, in that the absent witness resided outside the state, it was not error for the trial court to deny the request for a continuance. Surgijet, Inc. v. Hicks, 236 Ga. App. 80, 511 S.E.2d 194 (1999).
This section is not controlling where witness' absence is a result of trial notice inadequate in time to serve subpoenas. Siano v. Spindel, 136 Ga. App. 288, 220 S.E.2d 718 (1975) (see O.C.G.A. § 9-10-160).
Continuance will not be granted where the evidence will be merely corroborative. Abbott v. Padrosa, 136 Ga. 278, 71 S.E. 419 (1911).
Denial of continuance where witness subpoenaed but prior deposition existed.
- The trial court's sua sponte determination that the existence of a prior deposition rendered the presence of material witness subpoenaed by the plaintiff superfluous and that, hence, that witness would be excused, but no continuance would be granted, denied the plaintiff the right to present the plaintiff's case to the jury in the manner in which the plaintiff chose. Ricketson v. Blair, 171 Ga. App. 714, 320 S.E.2d 788 (1984).
Absence of evidence which is merely cumulative will not be a ground for continuance. Fry v. Shechee, 55 Ga. 208 (1875); Maynard v. Cleveland, 76 Ga. 52 (1885).
No continuance for indefinite, inadmissible, and useless evidence.
- Court will not grant a continuance if it appears that the evidence, if obtainable, would be indefinite, inadmissible, and useless. Brumby v. Barnard, 60 Ga. 292 (1878); Garlington v. Fletcher, 111 Ga. 861, 36 S.E. 920 (1900); Davis v. Blount, 137 Ga. 209, 73 S.E. 398 (1911).
Motion for continuance proper where necessary witness unable to attend.
- If the presence of the general manager of a corporation which is a party to a cause is necessary to the corporation on the trial of the case, the manager should be subpoenaed as a witness, and, if the manager is providentially unable to attend court, a motion for a continuance on that account should be made under this section. Persons-Phillips-Oxford Co. v. Morris Fertilizer Co., 20 Ga. App. 100, 92 S.E. 545 (1917) (see O.C.G.A. § 9-10-160).
Failure to subpoena is ground for refusing continuance. Kirby Planing-Mill Co. v. Hughes, 11 Ga. App. 645, 75 S.E. 1059 (1912).
Court did not err in refusing to continue the case because of the absence of a witness who had not been subpoenaed. Sheffield v. Sheffield, 38 Ga. App. 685, 145 S.E. 672 (1928).
Failure of service held excused for lack of opportunity due to rapid scheduling.
- Failure to serve because of lack of opportunity arising from the fact that case is tried soon after it has been entered on the docket will be excused. Youngblood v. Youngblood, 76 Ga. 840 (1886).
Summons in a justice of the peace court will not be sufficient on appeal in superior court; a witness must be served with a subpoena to attend the trial in the latter court. Harrison v. Langston & Woodson, 100 Ga. 394, 28 S.E. 162 (1897).
Refusal proper absent showing that witness is resident of county where action is pending.
- Where fact of witness' residence in county where action is pending does not appear, it is not error to refuse a continuance. Hatchcock v. McGouirk, 119 Ga. 973, 47 S.E. 563 (1904); Mulling v. Kingery & Bland, 33 Ga. App. 581, 126 S.E. 882 (1925).
Where absent witnesses resided outside of Georgia, it was not error for the trial court to deny plaintiffs' request for a continuance. Tucker v. Signature Flight Support-Savannah, Inc., 219 Ga. App. 834, 466 S.E.2d 694 (1996).
Continuance properly denied where witness was serving overseas in the military
- A court does not abuse its discretion in overruling a motion for a continuance, based upon the absence of an alleged material witness, where it was not shown that such witness lived in the county or had been subpoenaed, and where it appeared that the witness was serving overseas in the United States Army, and there was no reason to expect that the witness would be present at the next term of court. Bowers v. Fred W. Amend Co., 72 Ga. App. 714, 35 S.E.2d 15 (1945).
Failure to allege that witness is not absent by permission of applicant renders motion defective. Simons v. Mathis, 17 Ga. App. 588, 87 S.E. 845 (1916); Persons-Phillips-Oxford Co. v. Morris Fertilizer Co., 20 Ga. App. 100, 92 S.E. 545 (1917).
Motion properly denied absent showing that movant insisted upon witness' attendance.
- The court did not abuse its discretion in failing to continue case where it appeared that, although movant for continuance was put on notice of the uncertainty of attendance by the witness, the movant failed to show that the movant refused to take cognizance of this witness' predicament and to insist upon the attendance of the witness. Brazil v. Roberts, 198 Ga. 477, 32 S.E.2d 171 (1944).
Continuance properly denied where no showing of expectation of producing testimony at next term.
- The trial court did not abuse its discretion in denying defendant's motion for a continuance in a criminal proceeding so as to secure the presence of witness subpoenaed by defendant where defendant made no affirmative showing that the defendant expected that the defendant would be able to procure the testimony of such absent witness at the next term of court. Bullard v. State, 157 Ga. App. 606, 278 S.E.2d 26 (1981).
Given that the children of the deceased could not represent to the trial court that the children could have their expert available to testify at the next term of court, the record showed that the children failed to meet the requirements of O.C.G.A. § 9-10-160 and the trial court did not abuse the court's discretion in denying the children's application for a continuance in a wrongful death action. Davis v. Osinuga, 330 Ga. App. 278, 767 S.E.2d 37 (2014).
Motion failing to show expectation of procuring testimony at next term fatally defective.
- Where expectation of procuring witness' testimony at next term is not shown in the motion, it is fatally defective. Simons v. Mathis, 17 Ga. App. 588, 87 S.E. 845 (1916). See also Thompkins v. American Land Co., 139 Ga. 377, 77 S.E. 623 (1913); Fudge v. State, 18 Ga. App. 312, 89 S.E. 374 (1916); Persons-Phillips-Oxford Co. v. Morris Fertilizer Co., 20 Ga. App. 100, 92 S.E. 545 (1917).
Statement of counsel insufficient to show expectation of procuring testimony at next term.
- Statement of counsel, that "it was their information that A would be allowed by his physicians to return home in the near future," did not meet the requirement of this section that the applicant "expects he will be able to procure the testimony of the witness at the next term of the court." J.L. Young Co. v. Minchew, 42 Ga. App. 228, 155 S.E. 356 (1930) (see O.C.G.A. § 9-10-160).
Continuance properly overruled absent movant's expectation of procuring testimony next term.
- Where, on hearing of a motion for a continuance based on the absence of a witness, the applicant failed to testify that the applicant expected to be able to procure the testimony of the witness at the next term of the court, the motion was properly overruled by the court. Cumby v. New Albany Box & Basket Co., 58 Ga. App. 843, 200 S.E. 307 (1938).
Continuance properly denied absent showing of facts to be proved by absent witness.
- The court did not err in overruling the motion for a continuance upon the ground of the absence of a witness, where it was not made to appear to the court what the movant expected to prove by the witness, and where it appeared that the witness lived in another county and had not been served with a subpoena. Western & A.R.R. v. Bennett, 47 Ga. App. 629, 171 S.E. 187 (1933).
Where the defendant made no showing whatever as to the facts expected to be proved by the absent witness, and did not otherwise fully comply with this section, the trial court did not abuse its discretion in refusing the request for a continuance. United Motor Freight Terms. v. Driver, 75 Ga. App. 571, 44 S.E.2d 156 (1947) (see O.C.G.A. § 9-10-160).
Continuance ought not to be refused simply because counter-affidavit states that witness claimed to know nothing about the matter or that the witness's testimony would do no good. Waldrup v. Maxwell, 84 Ga. 113, 10 S.E. 597 (1889).
Counter-showing as to previous testimony. Counter-showing as to what the witness would have testified to may bring out what the witness testified to at a former trial. Waldrup v. Maxwell, 84 Ga. 113, 10 S.E. 597 (1889).
Where it appears that absent witness is only disinterested person by whom facts can be proved, this need not be alleged in the motion. Macon & B. Ry. v. Anderson, 121 Ga. 666, 49 S.E. 791 (1905).
Burden on appeal to show facts to be proved by witness.
- Under this section, the facts expected to be proved by missing witnesses are to be made to the court, and the burden is on the appellant when alleging error to show it affirmatively by the record; the brief cannot be used in lieu of the record or the transcript for adding evidence to support a claim of error. Finley v. Griswold, 149 Ga. App. 612, 255 S.E.2d 87 (1979) (see O.C.G.A. § 9-10-160).
No error in overruling motion made for purpose of delay.
- Where it appears that motion for continuance, made upon the ground of the absence of a witness, was made for the purpose of delay, no error appears in the overruling of the motion. Lovvorn v. Favor, 40 Ga. App. 386, 149 S.E. 721 (1929).
No error absent abuse of discretion.
- A motion for continuance because of an absent witness is addressed to the sound legal discretion of the trial judge, and where it does not appear that the judge abused the judge's discretion in passing on the motion, the refusal to continue the case is not error. United Motor Freight Terms. v. Driver, 75 Ga. App. 571, 44 S.E.2d 156 (1947).
No abuse of discretion where requirements of section not met.
- In order that the discretion of the trial judge be controlled, where a continuance is sought because of the absence of a witness, eight requirements as set out in this section must be shown; where the statutory requirements are not met, it is no abuse of the judge's discretion to deny a continuance. Carroll v. Crawford, 218 Ga. 635, 129 S.E.2d 865 (1963) (see O.C.G.A. § 9-10-160).
Appellate court limited to deciding whether ruling below was abuse of discretion.
- In civil and criminal cases alike, there is some discretion on the part of the trial court, and the reviewing court is limited to deciding merely whether the decision as made constitutes an abuse of discretion. Keller v. State, 128 Ga. App. 129, 195 S.E.2d 767 (1973).
Cited in Raiford v. Taylor, 43 Ga. 250 (1871); Aiken v. Carmichael, 127 Ga. 407, 56 S.E. 440 (1907); Seagraves v. Powell Co., 136 Ga. 877, 72 S.E. 349 (1911); Simons v. Mathis, 17 Ga. App. 588, 87 S.E. 845 (1916); Hall v. Langford, 18 Ga. App. 73, 88 S.E. 918 (1916); Louisville & N.R.R. v. Erness, 31 Ga. App. 810, 122 S.E. 260 (1924); Froug v. Upchurch Packing Co., 43 Ga. App. 207, 158 S.E. 610 (1931); Metropolitan Life Ins. Co. v. Hale, 47 Ga. App. 674, 171 S.E. 306 (1933); Martin v. Mills, 67 Ga. App. 424, 20 S.E.2d 621 (1942); Porch v. Foster, 209 Ga. 697, 75 S.E.2d 420 (1953); Smith v. Davis, 121 Ga. App. 704, 175 S.E.2d 28 (1970); Allard Prods., Inc. v. Appollo Contractors, Inc., 163 Ga. App. 373, 294 S.E.2d 594 (1982); Sun v. Bush, 179 Ga. App. 80, 345 S.E.2d 85 (1986), cert. denied, 479 U.S. 1057, 107 S. Ct. 936, 93 L. Ed. 2d 987 (1987); Carter v. Murphey, 241 Ga. App. 340, 526 S.E.2d 149 (1999).
RESEARCH REFERENCES
Am. Jur. 2d.
- 17 Am. Jur. 2d, Continuance, §§ 5, 10, 11, 26 et seq.
C.J.S.- 17 C.J.S., Continuances, § 70.
ALR.- Prejudicial effect, in civil case, of denial of continuance to call nonappearing witness whom adversary had been expected to call, 39 A.L.R.2d 1445.
Admissions to prevent continuance sought to secure testimony of absent witness in civil case, 15 A.L.R.3d 1272.
