#### John R. KRISON v. TEXAS INDUSTRIES, INC., et al.

No. 11494.

Court of Appeal of Louisiana, Second Circuit.

June 3, 1970.

*657Hargrove, Guyton, Van Hook & Ramey, by Ray A. Barlow, Shreveport, for defendants-applicants.

Feist, Schober & Gray, by James Fleet Howell, Shreveport, for plaintiff-respondent.

Before AYRES, BOLIN, DIXON, PRICE and WILLIAMS, JJ.

PRICE, Judge.

Writs were granted in this matter ordering the trial judge to show cause why a continuance should not be granted to defendants of the trial of this case set on the calendar of its First District Court for June 5, 1970. In their application for writs of certiorari, prohibition and mandamus, defendants set forth the chronological sequence of activities in this case beginning with the service of plaintiff’s original petition on March 18, 1970. Since that date there has been a continuous back and forth utilization of the discovery procedure provided by statute on the part of both plaintiff and defendants, including requests for production of documents, written interrogatories, requests for admissions of fact, and depositions of proposed witnesses.

The matters shown in defendants’ application reflect due diligence on the part of defendants in preparation of their defense. They further show that the fixing of the trial for so soon a date as June 5, 1970, would preclude their rights to fully prepare for trial by completion of discovery procedures already begun.

The response filed by the attorney for the plaintiff does not show that defendants have not used due diligence in the preparation of their defense to this case. The record shows to the contrary that due diligence has been exercised. Defendants are entitled to a reasonable delay to prepare its defense and to have the benefit of the discovery process. There is no showing that any prejudice would ensue to plaintiff by a reasonable delay in the trial of the case.

Accordingly, the preliminary writs issued herein be and they are made absolute and it is hereby ordered that the Honorable James R. Alexander, Judge of the First District Court, be and he is hereby directed to upset the fixing of this case for the date of June 5, 1970, and the case is hereby remanded to the First District Court for further proceedings in accordance with the views expressed herein, and in accordance with law.

DIXON, Judge

(dissenting).

We hold that the trial court abused its discretion in overruling a motion for continuance. The motion does not allege defendants’ inability to obtain witnesses or evidence for trial. Fairly construed, the motion alleges only that defendants: (1) do not have the transcript of a deposition taken by defendants; (2) will probably not have, before trial, transcripts of depositions of plaintiff’s witnesses yet to be taken by defendants; (3) might learn something from deposition yet to be taken that will lead to the discovery of evidence!

Writs are granted by ex parte order. Proceedings in the trial court were suspended. Further action was prohibited. Even the depositions set for June 2 and 3 are off; they were fixed by the defendants, who used their fixing as a reason for continuance.

No one has the unqualified right to take the deposition of his opponent’s witnesses before trial, to say nothing of a right to a *658delay to obtain the transcript of depositions taken at his own behest.

In my opinion, there has been no showing that the trial court abused its discretion. By summary process, without the benefit of oral argument when a lawyer must look at the judge in open court and tell him why he needs a continuance, we re-fix the calendar of the trial court.

Worse than that, we pronounce new law, unsupported by statute or precedent, that a defendant exercising “due diligence” is “entitled to a reasonable delay to have the benefit of the discovery process.”

I believe these writs were improvidently granted.