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Neven v. Neven

July 1915

LAURA A. NEVEN, RESPONDENT, V. JAMES H. NEVEN, APPELLANT.


Appeal from Second Judicial District Court, Washoe County; Cole L. Harwood, Judge.

Sweeney & Morehouse, for Appellant.

Dodge & Barry, for Respondent.

By the Court, McCarran, J.:

This was an action for divorce, commenced in the district court of Washoe County by respondent. Judgment having been rendered for respondent, a decree of the court was rendered in her favor in accordance with the prayer of her complaint. Appeal is taken to this court from the order denying appellant's motion for a new trial.

One question only is presented to this court for determination, namely: Was it an abuse of discretion for the trial court to deny appellant's motion for a continuance of the trial of the case?

The record discloses that on the 21st day of March, 1914, the attorneys for the respective parties being in court, the trial of the case was, by consent of said attorneys, set for Thursday, the 26th day of March, 1914, at

[38 Nev. 541, Page 543]

10 o'clock a. m. It further appears that on the 26th day of March, 1914, at the hour at which the case was set for trial, the plaintiff appeared in court, with her attorneys and witnesses, to proceed with the trial. The defendant, at that time, through his attorneys, presented the affidavit of a physician in furtherance of his motion for a continuance. The affidavit of the doctor was to the effect that appellant was in ill health and unable to be present at the trial.

Upon motion of counsel for the appellant, the case was continued, and on Saturday, the 28th day of March, 1914—calendar day in the district court—appellant and respondent and their respective attorneys being in court, the cause was, by and with the consent of all parties, set for trial for Saturday, the 4th day of April, 1914, at 10:30 o'clock a. m. of that day.

On Saturday, the 4th day of April, 1914, at the hour set for the commencement of the trial, the plaintiff appeared in person and with her attorneys and witnesses. The defendant was not present, and one of his attorneys presented a telegram from defendant in furtherance of a verbal motion for continuance. The telegram, admitted and filled in furtherance of the motion, is as follows:

“Western Union Telegram

“Received at 127 N. Center St., Reno, Nev. Phone 436.

“Always Open.

“13SFX7. Filed 828 AM. Elko, Nev., Apl. 4, 1914.

“Sweeney & Morehouse, Reno, Nevada.

“Detained here unavoidably. Guardianship matter Le Roy Neven. J. H. Neven. 832 AM.”

The motion of appellant being resisted by respondent in the court below, the respondent herself took the stand and testified with reference to appellant going to Elko, as follows:

“Q. Do you know what he went to Elko for? A. Well, some matter pertaining to ...


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