p. 350and where such counsel fee is not paid until the morning of the day of the trial, when it is too late for the wife to procure the necessary witnesses, it is error for the court to refuse to grant the wife’s motion for a postponement .of the trial.
Appeal by the plaintiff, Alfaretta J. Church, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Fulton on the' 5th day. of July, 19Ó2, upon the decision of the court, rendered after a trial at an adjourned term of the Fulton Trial Term held by consent before the court, without a jury, at chambers, granting the defendant an absolute divorce, and also from an order entered in said clerk’s office on the 21st day of August, 1902, denying the plaintiff’s motion to settle the issues in the action and .for a trial- of said issues by a jury.
The action was brought by the plaintiff against the defendant for an absolute divorce. In the answer of the defendant, the allegations of the complaint were denied, and a counterclaim was alléged against the plaintiff for a divorce in behalf of the defendant. The case came on for trial at an adjourned term at chambers.' At this time the plaintiff offered no evidence, and upon the defendant’s evidence the court adjudged that the defendant was entitled to a divorce against the plaintiff, and ordered judgment accordingly. From the judgment entered thereupon this appeal is taken. Further facts appear in the opinion.
Clark I. Jordan, for the appellant,
Thomas Hogan, for the respondent.
We think that this judgment must ¡be reversed for the refusal of the trial court to grant a postponement upon the motion of the plaintiff. The affidavit for a postponement shows that there were numerous witnesses outside of the county of Fulton who were necessary and material for the' plaintiff upon the trial of this action Which the plaintiff had been unable to procure. In the affidavit is included the usual affidavit of merits and the usual case made for a postponement of the trial. It is true that, one of. the witnesses claimed to be a necessary and material witnessi was produced there by the- defendant, but the affidavit specifies other witnesses whose testimony is material to the plaintiff.
p. 351Nor can the plaintiff be held to have been negligent in not having these witnesses at the trial. The defendant had been required by an order of the court to give to the plaintiff thirty dollars counsel fee to enable the plaintiff to prepare for trial and to subpoena, witnesses. This counsel fee was not paid until the morning of the day of the trial when it was too late for the plaintiff to procure the. necessary witnesses. We think that she might fairly have waited until the counsel fee was paid her before she prepared for trial, and the delay of the defendant in making payment thereof must estop the defendant from claiming that plaintiff was negligent in failing to make her preparation.
With this disposal of the judgment, it is probably unnecessary to determine the appeal from the order declining to settle the issuea for a jury trial. If there had been a waiver for the purpose of a, trial upon the adjourned day upon which it was tried, that waiver would hardly be applied where other good and sufficient reason existed for postponing the trial from the day upon which it waa consented that the trial should be had. The judgment should be-reversed and a new trial ordered, with costs to plaintiff- to abide event.
All concurred.
Judgment reversed and new trial granted, with costs to appellant: to abide event, and order modified so as to provide leave for renewal of motion to' settle issues, and as so modified affirmed.