Pulver v. Hiserodt

Bronson, Chief Justice. On motion for the first time to put off the trial of a cause where there are no circumstances of suspicion, the common affidavit is sufficient, and the Defendant cannot be required to state what he expects to prove by the absent witness. Ogden v. Payne, 5 Cow. 15 ; Hooker v. Rogers, 6 id. 577 ; The People v. Vermilyea, 7 id. 383 ; Onderdonk v. Rantlett, 3 Hill, 323.) Although the Defendant had moved to put off the trial in March, that cannot properly be taken into the account, for the reason that the cause was not reached, and could not have been tried at that circuit, if no application for a postponement had been made. A plain case was made out for putting off the trial at the Uovember circuit, unless there was something to induce the belief that the motion was intended merely for delay. I have been unable to discover any just ground for saying that the application was not made in perfect good faith. The Defendant had taken all proper means to secure the attendance of the witness, who for some unexplained reason had left the state just before the circuit, and probably for the very purpose of getting beyond the reach of a subpoena. She had been subpoenaed by the Defendant, and had attended the previous March circuit, and there was no just ground for doubt, that she was regarded by Um as a material and necessary witness. The fact that the Defendant had moved to put off the trial in March, [51] on account of the absence of Vandewater, proved nothing against his application in November, on account of the absence of another witness. There was nothing to show that all the Defendant had sworn to about Vandewater was not strictly true; and if the Defendant had not taken all the proper measures for obtaining his testimony, by commission or otherwise, for the November circuit, that was not a sufficient reason for compelling him to go to trial in the absence of another material witness. Although the Plaintiff swore to his belief that the Defendant was “putting all his property out of his hands,” that was not a sufficient reason for refusing to postpone the trial; nor was there anything in the nature of the action which should deprive the Defendant of a fair and reasonable opportunity to be heard in his defence. It would perhaps have been as well if questions of this kind had been left to the discretion of the judge who holds the. circuit, without any review; but it is settled that decisions at the circuit upon such questions may be reviewed; and if we follow the adjudged cases, this verdict cannot stand. Verdict and subsequent proceedings set asióle, and a new trial granted., on payment by the Defendant of the costs of that circuit, up to the time that the circuit judge finally refused to put off the trial of the cause.