Printup v. Mitchell

By the Court. Benning, J. delivering the opinion. In respect to the continuance first granted, it seems that the plaintiff, at the time when it was granted, insisted that it should be charged against the defendant, but that the i-Oourt charged it against neither party. This was a decision. [588] And if it was an erroneous one, and the plaintiff wished it corrected, he should have excepted to it and brought it before this Court, within the regular time allowed by law. No excuse is offered for' the failure to bring the case, thus, before this Court. The motion made at the next term, to have the continuance charged nunc pro tunc against the defendant, and the exception to the refusal of the Court to grant that motion, were but an attempt to bring the decision of the preceding term in review before this Court. That is what they amount to. [1.] Such a motion the Court was, of course, right in refusing. Ought the second continuance to have been charged to the defendant ? [2.] We think not. The ground of that continuance, was the absence of Mr. Akin, one of the Counsel for the defendant, and Mr. Akin’s absence was occasioned by illness; that is, the ground was “ Providential.” And the Act of 1854 declares, that continuances for Providential cause, shall not be charged against either party. (Acts of 1854-’52.)