368 RICHARDSON V. BOYD. (.69 ARK. RICHARDSON V. BOYD. Opinion delivered June 8, 1901. CON TO:STITANCE--AB ENCE OF DEFENDANT—DIscREnoN.--Where defendant and his leading counsel were absent ,from the trial because they were-. misinformed by plaintiff as to the day set for the hearing, and defendant was an important witness, it was an . ahuse of disCretion to refuse a postponement for- one day, in order that defendant and his counsel .might 1?e present. Appeal from Sevier Clicuit Court. WILL P. TwEL, Judge. This was an action b y ' B. A. Boyd against D. C. Richardson. . The cause was set for trial on Wednesday of the second week of court, in the absence of defendant and his ,couns4, ,init plaintiff informed -. defendant's junior counsel that the catise was set 'for thursday of the , second weeic of court, and the lattir. nOtified defendant and his leading counsel. Af e t rwards . ilaintiff infoymed defendant's junior connel that he had been mietaken, and that the cause whs se.t fOr Wednesday, instead of Thurglay, hut it was .. .then too late to get word io defendant and his leading counsel in time for them ,to be Tresent. When ' . the cause was Oiled on the dey set defendant's . . junior counsel ' set Up the .foregoing facts, :and asked a .postponement until the following day, alleging, in addition, that there were.facts . essentia0O the aefense which no
139 ARK.] 369 ilie but defendant could prove. The court overruled the motion, stating that counsel for defendant shoUld not have relied upon the information receiVed from plaintiff. There was judgment for plaintiff, from which defendant has appealed. L. A. Byrne, for appellant. It was an arbitrary abuse of discretion for the . trial bonrt to deny appellant's motion for continuance; and- in so doing the court committed reversible error. 21 Ark. 460; 40 Aik. 114. WOOD„T. The non-attendance of the def6ndant (appellant) and hiS leading "cbunsel, it appears, was 13ecause oT .a misapprehension of facts caused by the statement of the "plaintiff (appellee) which was believed and acted upon, and which was incorrect. To force the trial in the absence of the defendant and his leading counsel under such circumstances would 'be 'Vnabling ,the plaintiff to gain an unjust advantage through his own wrong. It matters not, In the result to . fhe defendant, whether the 'wrong was intended o • not. Withont entering fully intO the Merits of the controversy, it is easy to see that the defendant had not only reason for being present himself in person, but needed the assistance of his leading coun§el. The refusal of the court to grant a 'continuance, or at least a postponement oT the trial, under the circumstances, for a short time, to allow an opportunity for the defendant and his leading counsel to be present was, we think an unreasonable exercise of the court's discretion, which should be corrected -by a reversal of the judgment and a new trial. It is so ordered.
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