Connell v. Sharpe

By the Court. Lumpkin, J., delivering the opinion. Whatever opinion may be entertained of this case outside of the record, upon the showing made, the defendant was entitled to a continuance, not on account of the absence of the witness, Chance, for his testimony went to establish an immaterial issue, and one which could not have availed the defendant, but on account of the providential absence of the [445] defendant himself, and that he could not go safely to trial without him. True, the plaintiffs’ counsel dispensed with the preliminary showing by defendant, to enable him to examine the plaintiffs as to the usury in the contract. But as the attorney was unable to conduct the examination, as he might have done by the aid of his client, who might even have suggested witnesses who could have contradicted the plaintiffs, we do not think a trial could be forced in this way. Let the judgment be reversed.