Adair v. Cooper

Bell, J. We are of opinion that there is no error in the judgment of the District Court. The petition for certiorari showed merits, and the motion to- dismiss it was properly overruled. There was no valid objection to it. The appellants did not show themselves' entitled to recover a judgment on the subscription paper, which was the foundation of their suit. The evidence showed very clearly that they had not arrested the person whose arrest the subscription was intended to -secure. The only ruling of the court below, which can with any plausibility be called in question, is the ruling upon the application for a continuance of the cause. The application showed no diligence; but the appellants sought to excuse the want of diligence upon the ground that the witness for the want of whose testimony the continuance was asked, was the sheriff of the county, and that it was therefore unnecessary to have him subpenaed. We think that the mere fact that the witness was the sheriff of the county does not excuse the want of the ordinary diligence to procure his presence upon the trial. The application does not state that the witness was accustomed to attend the sessions 'of the District Court in the discharge of his duties as sheriff, nor does it state that the party applying for the continuance expected him to be in attendance. The application states that “the affiant supposed that the witness was bound to be at court.” Although it is usual for sheriffs to be in attendance upon the District Courts of their respective counties, when such courts are in 552 session, there- may be cases where the sheriff' of the county does not usually attend the court, but performs his official duties by deputy. The application for a continuance, when it does not conform to the requirements of the statute, should at least show a clear case of merits. Judgment affirmed