Jordan v. Robson

Moore, J. The application for a continuance by the appellants, who were defendants in the District Court, 'should have been granted. It was the first application for a continuance. The affidavit showed facts tending to prove a complete and effectual de [615] fence to the plaintiff’s action. All reasonable diligence seems to have been used in preparing for trial, and the circumstances of the case sufficiently excuse the want of the ordinary statutory diligence entitling a party to a continuance. The ground upon which the application was overruled by the court is not stated in the record. Counsel say, in their brief, that it was refused by the court upon the ground that the defendants had failed to file an affidavit impeaching the genuineness of the deed under which the plaintiff claimed, within one day after the same was filed and notice thereof given to the defendants, as directed in art. 469, O. & W. Dig. The court, it is said, holding the failure of the defendants to impeach the deed by affidavit within one day after they received notice of its filing, as an admission of its genuineness, which precluded them from afterwards impeaching it. If this was the ground upon which the court acted in refusing the continuance, we are clearly of opinion that it was controlled by an erroneous construction of the statute. The only purpose and object of this law was to relieve parties, unless their deeds were, impeached by the affidavit of the opposite party, from the burthen of proving their execution in accordance with the common law rule, upon the trial of the case. The failure to file an affidavit impeaching the deed gives it the same force, and no more, as .if its due execution had been proved upon the trial by the subscribing witnesses. But it does not estop or preclude the opposite party from the introduction of testimony to disprove it, or from showing it to be a forgery. His doing so without previous notice to his adversary, might furnish him with a good ground for a new trial, if, in the opinion of the court, there was a probability of injustice having been done by the verdict. The judgment is reversed and the cause remanded. Reversed and remanded.