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BAY SPRINGS FOREST PRODUCTS, INC. v. MILDRED WADE

AUGUST 03, 1983

BAY SPRINGS FOREST PRODUCTS, INC.
v.
MILDRED WADE, DAVIS WADE, NELL D. WADE, JERRY MINTER WADE AND ANN PIERCE



BEFORE PATTERSON, C.J., ROY NOBLE LEE AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT

I.

This civil action arises out of the purported sale of wrongfully converted timber to Bay Springs Forest Products, Inc. ("Bay Springs"). The timber was cut from land in Newton County, Mississippi, owned by members of the Wade family, without their knowledge or consent. The Wades brought suit for the value of the converted timber purchased by Bay Springs.

 A jury of the Circuit Court of Newton County found for the Wades and awarded damages in the amount of $100,740. Final judgment has been entered thereon. Feeling aggrieved, Bay Springs has appealed. For the reasons set forth below, we affirm.

 II.

 At all times relevant hereto Mildred Wade, Davis Wade, Nell D. Wade, Jerry Minter Wade, and Ann Wade Pierce (hereinafter "the Wades") were holders of record title to the west half of Section 5, Township 7 North, Range 11 East in Newton County, Mississippi. The east half of Section 5 was owned by Robert A. Grissom.

 In 1979 Grissom engaged Jake Smith, Harvey Cleveland, and Bobby Gregory to cut timber from a 79 acre portion of the west half of Section 5, the part of the section owned by the Wades. Grissom claimed title by adverse possession. During 1979 and 1980, Cleveland, Smith and Gregory cut the timber and hauled it to Bay Springs' woodyard in Hickory, Mississippi. Gregory alone hauled 497,715 board feet to Bay Springs' yard. Bay Springs purchased the timber from Gregory and paid $210 per thousand board feet delivered at the yard. A portion of the purchase price, called stumpage, went to Grissom as the alleged owner of the timber. The balance went to Gregory for cutting and hauling.

 III.

 This case was originally called for trial on August 21, 1981. After hearing some evidence, a mistrial was declared, where upon the Wades amended their declaration to include certain allegations with reference to Bobby Gregory's trespassing on their land.

 At this stage in the proceedings, the following order

 was entered by the Circuit Judge:

 ORDER

 The Court having considered motions in the above styled and captioned cause, and having heard argument of counsel, is of the opinion a mistrial should be declared in this cause, and the case is pre-emptorily set for trial on Wednesday, September 2, 1981, a regular day on this August, 1981, term of Court.

 That the Plaintiff is given leave to amend his Declaration and for same to be done by 12:00 o'clock Noon, Tuesday, August 25, 1981, and with the Defendant given the right to file a response thereto by 12:00 o'clock Noon, Friday, August 28, 1981.

 Following the Wades' filing of their amended declaration, Bay Springs sought a continuance, purportedly needing time to prepare a defense based upon the new allegations concerning Gregory's activities. The trial judge found that Mr. Gregory's activities had long been known to all. He overruled the motion for a continuance, stating

 If there is a surprise, it appears to me that it is a result of neglect on the part of counsel. Therefore, this case will continue, . . . .

 There is no apparent reason why the case could not have been tried on August 21, 1981. Even assuming that a mistrial was proper, we discern no reason why the new trial should not have commenced immediately on August 21. The trial judge in fact continued the case until September 2, 1981. He thus gave Bay Springs twelve days more time to prepare for trial than it was really entitled to.

 Bay Springs makes much of the point on this appeal. It charges that the trial court committed reversible error by overruling the motion for a continuance. Curiously, more pages of Bay Springs' briefs are devoted to this issue than to any other.

 This Court has repeatedly held that the grant or denial of a continuance rests within the sound discretion of the trial judge. Rogers v. Rogers, 290 So. 2d 631, 634-635 (Miss. 1974). We will not reverse in such cases unless convinced that the trial judge has abused his discretion and unless we are satisfied that injustice has resulted therefrom. Croft v. Bituminous Casualty Corp., 235 Miss. 95, 108 So. 2d 700 (1959); Roberson v. Quave,

 Sheriff, 211 Miss. 398, 51 So. 2d 62 (1951).

 If anything, the trial judge here abused his discretion in favor of Bay Springs. He gave Bay Springs twelve extra days to prepare for trial. The trial judge correctly denied Bay Springs' motion for a further continuance.

 IV.

 Bay Springs attacks the Wades' claim that they owned the timber. This attack takes two forms. First, Bay Springs challenges the admissibility of the testimony of the Wades' surveyor, Maury Gunter. Admittedly, Gunter's testimony was critical in establishing that the lands from which the timber was cut were indeed within the Wades' half of Section 5. Second, Bay Springs claims that Grissom had acquired the 79 acres in question by ...


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