Wolcott v. Shaw — 10 Del. 25

Majority

p. 25

Henry C. Wolcott v. Edwin P. Shaw.

Headnote

When the record states that both parties appeared on the first day for trial, and that the case was continued on the application of the defendant, and that on the second day, the plaintiff being absent, it was continued again without stating on whose application or any reason therefor, the court will presume that it was done by the justice of his own motion to afford a fair opportunity for the trial of the case.

Certiorari. The record stated the appearance of both the plaintiff and defendant, on the 15th day of September, 1873, the return day of the writ, and the defendant not being ready for trial claimed a postponement of the case until the 29th day of September, 1873, and that on that day the defendant appeared, but that the plaintiff did not appear and the case was continued until October 6th, 1873, when the defendant having failed to appear, after hearing the allegations and proofs of the plaintiff judgment was rendered by default against the defendant and in favor of the plaintiff for, etc.

The exception was that the justice of the peace adjourned the hearing of the case on the 29th of September, 1873, without application of either party, and without any reason being assigned or appearing therefor of record.

The first adjournment was on the application of the defendant, and although it was not stated that the second adjournment was on account of the absence then of the plaintiff, it was but reasonable to presume that it was done by the justice of his own motion for that reason, and to afford a fair opportunity for the trial of the case. The judgment is therefore affirmed.