2021 Georgia Code
Title 9 - Civil Practice
Chapter 10 - Civil Practice and Procedure Generally
Article 7 - Continuances
§ 9-10-166. Diligence to Be Shown by Applicant for Continuance
In all cases, the party making an application for a continuance must show that he has used due diligence.
(Orig. Code 1863, § 3457; Code 1868, § 3477; Code 1873, § 3528; Code 1882, § 3528; Civil Code 1895, § 5135; Penal Code 1895, § 965; Civil Code 1910, § 5721; Penal Code 1910, § 991; Code 1933, § 81-1416.)
Cross references.- Corresponding provision relating to criminal procedure, § 17-8-20.
JUDICIAL DECISIONS
Conditions for continuance based on absence of counsel.
- A showing of compliance with O.C.G.A. § 9-10-155 plus a showing of diligence under O.C.G.A. § 9-10-166 is required to obtain a continuance because of the absence of counsel. McKinnon v. Shoemaker, 166 Ga. App. 231, 303 S.E.2d 770 (1983).
Proof that absent party providentially prevented from attending trial required for continuance.
- 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).
The trial court erred in denying motion for continuance where lead counsel was involved in the trial of another case in another court and had with due diligence made the showings required by O.C.G.A. § 9-10-166 that the client could not go safely into trial without the attorney's services and that the continuance was not sought solely for the purposes of delay. Georgia Am. Ins. Co. v. Varnum, 179 Ga. App. 195, 345 S.E.2d 863 (1986), aff'd, 182 Ga. App. 907, 357 S.E.2d 609 (1987).
Discretion of trial judge not to be disturbed absent clear abuse.
- 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. Stanley v. Amos, 79 Ga. App. 297, 53 S.E.2d 568 (1949).
In a deprivation action, given the fact that at the time a parent became ill and could no longer proceed, the hearing was nearly concluded, coupled with the fact that counsel did not intend to present any additional witnesses, the court's denial of a request to continue the hearing was not an abuse of discretion, particularly since the hearing had already been delayed two months after the Department of Children and Family Services had presented its evidence. In the Interest of S.P., 282 Ga. App. 82, 637 S.E.2d 802 (2006).
Refusal to grant continuance not error where movant lacked due diligence.
- 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 party 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 a 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 the 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 the defense counsel's convenience, and defense counsel did not do so until the day preceding the trial, and by the 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 does not abuse its discretion in denying the motion for continuance. 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).
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).
Continuance properly denied where intervenor claimed insufficient notice of action involving state.
- 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).
A continuance because of the absence of counsel is not favored. Atlanta W. Enters., Inc. v. Cobb County Bank, 150 Ga. App. 577, 258 S.E.2d 193 (1979).
Counsel's attempt to relay information to judge through third person at counsel's and client's peril.
- Where counsel attempts to relay information to a trial judge through a third person, counsel does so at counsel's peril and at the peril of the client. Atlanta W. Enters., Inc. v. Cobb County Bank, 150 Ga. App. 577, 258 S.E.2d 193 (1979).
Motion to extend discovery properly denied.
- Trial court did not abuse its discretion in denying a property owner's motion to extend discovery as to a partnership because the motion was filed more than a year before the partnership joined the case and referred only to a developer; the motion was never amended to add the partnership and never applied to the partnership. Zywiciel v. Historic Westside Vill. Partners, LLC, 313 Ga. App. 397, 721 S.E.2d 617 (2011).
Cited in Metropolitan Life Ins. Co. v. Hale, 47 Ga. App. 674, 171 S.E. 306 (1933); 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); Carver v. Cranford, 122 Ga. App. 100, 176 S.E.2d 272 (1970); George v. Handshakers, Inc., 140 Ga. App. 641, 231 S.E.2d 575 (1976); Dobbs v. Cobb E.N.T. Assocs., 165 Ga. App. 238, 299 S.E.2d 141 (1983); Landers v. Georgia Baptist Medical Ctr., 175 Ga. App. 500, 333 S.E.2d 884 (1985); Adams v. Hill, 177 Ga. App. 492, 340 S.E.2d 27 (1986).
RESEARCH REFERENCES
Am. Jur. 2d.
- 17 Am. Jur. 2d, Continuance, § 28.
C.J.S.- 17 C.J.S., Continuances, § 54.
ALR.- Continuance of civil case because of illness or death of party, 68 A.L.R.2d 470.
