continuance

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Continuance

The adjournment or postponement of an action pending in a court to a later date of the same or another session of the court, granted by a court in response to a motion made by a party to a lawsuit. The entry into the trial record of the adjournment of a case for the purpose of formally evidencing it.

Courts, by virtue of their authority to hear and determine cases, have inherent discretionary power to grant or deny continuances,subject to restrictions imposed by statute. Continuances are granted when necessary to avert a miscarriage of justice but will be denied if sought merely for the purpose of delay. Criminal defendants are entitled to a Speedy Trial unless good cause justifies a continuance of the action.

In ruling on a motion for a continuance, a court examines all the facts and circumstances of a case—in particular, the applicant's Good Faith, the purpose and necessity for the postponement, the probable advantage that could result from the continuance, and the possibility of prejudice to the rights of other parties. If there are multiple defendants in a case, a continuance granted to one of them postpones the trial of the case against all of them. A continuance is usually granted if requested by a defendant, since the plaintiff should have adequately prepared his or her case before commencing the action.

A court can, sua sponte (on its own motion), order a continuance in certain instances, such as when none of the parties appears on the date of the hearing.

A continuance can occur by operation of law when a case has not been tried or otherwise disposed of during a particular term because of unanticipated problems, such as the death of the presiding judge. The case is automatically postponed until the following term.

Parties in a lawsuit file pleadings (written statements presenting each side of the case before trial to elucidate the issues to be resolved). A plaintiff whose complaint fails to state a Cause of Action is not entitled to a continuance to correct this failure, but a defendant can make a motion for a dismissal of the action. Nor can a defendant whose answer to the plaintiff's complaint does not allege a meritorious defense cure this deficiency by seeking a continuance, but the plaintiff might make a motion for a Summary Judgment in his or her favor. A continuance may be granted, however, in a case that was scheduled for trial before the issues were joined or clearly established.

After a trial has begun or while motions are made pending the decision, a court can grant a continuance provided adequate grounds exist.

The trial of a case that has been remanded (sent back) by an appellate court to a lower court for a new trial may be continued at a later date if there is not enough time to prepare for the new trial.

When the parties consent to or stipulate a postponement of a case, a court will grant a continuance only if their agreement meets its approval.

Grounds

Continuances are granted only if valid grounds exist that justify the postponement of the action. For example, a court will continue a case in which all the interested parties have not appeared in order to bring them into the action so that they may present their side of the case. If Service of Process has not been properly made upon a defendant, a court may grant a continuance to perfect service so that a plaintiff will not be deprived of an opportunity to have the action tried. A delay in filing pleadings, which surprises the opposing party and affects the issues in an action, ordinarily entitles the adverse party to a continuance, since that party must be given time to prepare a response before the trial in order to prevent prejudice to his or her rights. A continuance may be granted for the accidental loss or destruction of papers in an action provided they cannot be readily replaced and the applicant for the continuance was not responsible for their loss.

Lack of Preparation Where the party making the motion is guilty of inexcusable ignorance, delay, or Negligence in preparing the case, the court will deny a motion for a continuance. An applicant who can, however, demonstrate some legal or equitable reason or exercise of diligence in trying to prepare for the case may win a continuance.

Change of Counsel Withdrawal of legal counsel or employment of new counsel immediately preceding or during a trial does not necessarily warrant a continuance of the action. For example, if it is clear that a party has changed attorneys a number of times solely as a dilatory tactic for the purpose of delay, that party will be denied a continuance. Only where the circumstances of the case demonstrate that a miscarriage of justice will ensue from a denial of a continuance will a court seriously consider postponing the action.

Pendency of Action A continuance is granted when it is in the interests of justice to await the outcome of another proceeding affecting the same parties or where the interests of the parties are closely related, such as in cases dealing with Vicarious Liability.Illness The illness of a party to a lawsuit justifies a continuance only if injustice would result from proceeding with the case. If an illness is feigned or alleged merely for the purpose of delay, the applicant's motion will be denied and the applicant might be held in Contempt. A party who becomes ill before trial should notify the court and the other parties, as soon as it is reasonably practicable to provide such notice, that his or her condition may jeopardize his or her participation in the proceedings. An Affidavit or certificate of a physician that a party's illness precludes his or her presence at trial should be filed with the court.

The illness of the judge presiding over the trial operates as a continuance of the action.

Determination

A motion for a continuance is heard by the court which rules upon it after an evaluation of the evidence before it. If a continuance is granted, the trial court will set its duration with regard to the rights of both parties and impose any necessary restrictions. During the time of the adjournment the court may modify or revoke its order if reasonable cause is shown or if the court is satisfied that no injustice will result.

Successive continuances sought by a party are scrutinized closely by a court because there is a likelihood that they are sought for dilatory purposes. Unless the applicant clearly establishes that a postponement is essential to the integrity of the judicial process and a preservation of the rights of the parties, it will be denied. A motion based upon newly discovered evidence will be denied if the applicant could have discovered the evidence sooner by the use of reasonable efforts.

A continuance expires on the date specified in the court order. If the basis for the continuance ceases to exist prior to that date, the court may revoke its order and require that the case proceed to trial.

Waiver

A party relinquishes or waives the right to obtain a continuance if he or she (1) fails to request one; (2) proceeds with the case after the motion for a continuance has been denied without making an exception to the ruling; or (3) voluntarily discontinues the action.

Further readings

Yeazell, Stephen C. 1998. Federal Rules of Civil Procedure: With Selected Statutes and Cases. Gaithersburg, Md.: Aspen.

Cross-references

Motion; Pleading; Speedy Trial.

continuance

n. a postponement of a date of a trial, hearing or other court appearance to a later fixed date by order of the court, or upon a stipulation (legal agreement) by the attorneys and approved by the court or (where local rules permit) by the clerk of the court. In general courts frown on too many continuances and will not allow them unless there is a legitimate reason. Some states demand payment of fees for continuances to discourage delays.

continuance

noun abiding, adjournment of a cause, adjournment of a proceeding, admission of postponement, adsiduitas, continuatio, continuation, endurance, extension, lasting, lengthening, perpetuation, perpetuitas, perseverance, persistence, postponement, prolongation, protraction, stay, sustained action
Associated concepts: continuance in office, continuance of a nonconforming use, continuance of a partnership, continuunce of a proceeding, continuance of criminal case, preeumption of continuance
See also: continuation, continuity, diligence, duration, extension, habitation, indestructibility, life, longevity, pendency, period, perpetuity, perseverance, phase, renewal, resumption, survival

continuance

(US) the postponement or adjournment of a legal proceeding.

CONTINUANCE, practice. The adjournment of a cause from one day to another is called a continuance, an entry of which is made upon the record.
     2. If these continuances are omitted, the cause is thereby discontinued, and the defendant is discharged sine die, (q.v.) without a day, for this term. By his appearance he has obeyed the command of the writ, and, unless he be adjourned over to a certain day, he is no longer bound to attend upon that summons. 3 Bl. Com. 316.
     3. Continuances may, however, be entered at any time, and if not entered, the want of them is aided or cured by the appearance of the parties; and Is a discontinuance can never be objected to pendente placito, so after the judgment it is cured by the statute of jeofails[?]. Tidd's Pr. 628, 835.
     4. Before the declaration the continuance is by dies datus prece partium; after the declaration and before issue joined, by imparlance; after issue joined and before verdict, by vicecomes non misit breve; and after verdict or demurrer by curia advisare vult. 1 Chit. Pl. 421, n. (p); see Vin. Abr. 454; Bac. Abr. Pleas, &c. P; Bac. Abr. Trial, H.; Com. Dig. Pleader, V. See, as to the origin of continuances, Steph. Pl. 31; 1 Ch. Pr. 778, 779.

References in classic literature ?
Thus unscrupulously did the old gentlewoman sacrifice the continuance, perhaps, of an ancient feathered race, with no better end than to supply her brother with a dainty that hardly filled the bowl of a tea-spoon
The particular characteristic of this was that more songs were made than cannons fired during its continuance.
During the continuance of the panic there occurred an instance of feminine heroism that I cannot omit to record.
Hunt gave chase; there was a sharp scamper, though of short continuance.
Lady Susan had received a line from him by that day's post, informing her that Miss Summers had absolutely refused to allow of Miss Vernon's continuance in her academy; we were therefore prepared for her arrival, and expected them impatiently the whole evening.
No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.