Appeal from the District Court of Cascade County; J.W. Speer,
DIVORCE, Evidence of residence sufficient MOTIONS, Court did not err in refusing Continuance PLEADINGS, Lost Pleadings, Substitution of Copies. 1. Divorce Motion for continuance, Court did not err in refusing. Where action for divorce was over a year old at time of trial, and husband's attorney was told Saturday before trial when it would take place, court did not err in refusing motion for continuance made by law partner of husband's attorney in order that husband's attorney could arrange to be in court. 2. Pleading Lost pleadings, copies authorized. In action for divorce wherein original pleadings were lost in Clerk of Court's office, trial court did not err in proceeding to trial upon substituted carbon copies under statute which provides that if original pleading or paper be lost, court may authorize copies thereof to be filed and used instead of originals. 3. Divorce Evidence sufficient to establish residence. Evidence was suffifient to establish wife was resident of state for year next preceding commencement of her suit for divorce.
Appeal from decree of divorce.
Irene Mortenson, on May 9, 1953, commenced this suit for divorce against her husband Paul J. Mortenson.
The husband, on June 19, 1953, appearing by counsel, interposed a general demurrer to the wife's complaint and made written demand for a bill of particulars. The court overruled the demurrer and, although not a proper case therefor, a bill of particulars was furnished.
Thereafter the husband filed an answer and cross complaint wherein he denies the charges of extreme cruelty made against him and prays that his wife take nothing and that he "be granted a decree of separate maintenance enabling him to live separate and apart from the Plaintiff."
On October 29, 1953, the parties, by their respective counsel, entered into a written stipulation that the suit "may be tried before Hon. J.W. Speer, sitting without a jury."
On Monday, May 24, 1954, at 2:00 o'clock p.m., the suit came on regularly for trial before the Honorable J.W. Speer, a district judge presiding in the district court of Cascade County, Montana, at which time Julius J. Wuerthner, Esq., appeared as counsel for the wife and Gene B. Daly, Esq., appeared as counsel for the husband.
At the opening of the trial defendant's said counsel interposed a motion "to either vacate the hearing at this time and try it later * * * on the basis that Mr. O'Connell [then Mr. Daly's law partner] is the counsel for the defendant in this case, and he checked Saturday noon with the clerk's office and was under the impression that a damage action would be tried ahead of this case today, which I understand had been settled today. Therefore, he is not able to be present in court and I have been taken by surprise. We do not have witnesses that are able to be here on such short notice, which are out of the State, and I would like the Court to consider that motion at this time. We are not able to proceed."
The wife's counsel opposed the granting of the above motion and represented to the court that plaintiff had in attendance two witnesses from Butte, Montana, and also the principal of one of the Great Falls schools for whom a substitute had to be obtained to enable such witness to attend the trial.
"The Court: Well, I talked with Mr. O'Connell Saturday and told him this case was set for trial and there would have to be some stipulation before noon so I said I would call in Judge Hattersley if agreeable; otherwise, I would hear it myself and because no stipulation was made and no telephone call was made to me the motion now made by such counsel is not sufficient to grant a continuance in the case; therefore the case will have to proceed."
As one of his three specifications of error the husband assigns the refusal of the trial judge to vacate the setting of the trial because of the absence from the trial of one of ...