Wilson v. Kochnlein

Beown, J., delivered the opinion of the court. This is a supersedeas to the judgment of the circuit court [151] of Ohio county, rendered upon a verdict for one thousand five hundred dollars damages for an assault -and. battery. Andrew Wilson the plaintiff in error was defendant in the court below, and John M. KochnUm the defendant in error, was the plaintiff in the court below. At the May term, 1862, there -was a plea of not guilty and issue, and the cause continued by consent, hut at the defendant’s cost. At the October term, 1862, continued on motion at the, defendant’s cost. The record shows no entry at the May term, 1863, if any court was holden at that time. At the October term, 1863, continued on the motion of defendant and at his cost. At the December term, 1863, continued generally. At the March term, 1864, 'continued on motion. At the May term, 1864, May 10th, trial was had and verdict and judgment. .Before the jury was sworn the defendant, Wilson, moved the court for a continuance till the next term, on account of the absence of a witness for whom a subpoena had issued to that term. Upon this motion the defendant was sworn and stated the materiality of said witness, but no where that he could not prove the same facts 'by others, nor that he could not safely go to trial without that witness. It further appeared that the defendant Wilson saw the witness in Wheeling in January preceding the trial, who informed him that he was then going to St. Joseph, in Missouri, for permanent residence, but expected to return to Wheeling for his family where they then resided. He then spoke to witness about taking his deposition in this cause, and it was understood between them his deposition would be taken when he returned for his family. The witness, Sheehan, was proved on the part -of the plaintiff, to have been in Missouri since the fall preceding,-and engaged in business there as a partner5of one Robert Woods, and only occasionally visited Wheeling. The plaintiff produced the defendant’s subpoenas for the witness, Sheehan, at the,present and two preceding terms, [152] all returned by the sheriff “ not found.” Upon this state ot case the circuit court overruled the defendant’s motion for a continuance; and it is the correctness of this ruling which is the subject of inquiry now. The cases cited in the argument clearly show that the discretion of the judge in granting or refusing- a continuance, while it is a legal discretion, is nevertheless to be exercised more rigidly after long delays, or several continuances granted to the party, than upon the first application. The defendant here had three continuances and perhaps more; and the present motion for another, was two years after issue joined, and on account of the absence of a witness three times returned not found, and himself fully informed by the witness himself, of his intended departure, without having taken, or ever made an effort to take, his deposition. Here there is such an inexcusable disregard of the well settled rule of law, which requires due diligence, as to forbid this court’s interfering for that cause, with the discretion exercised in the premises by the court below. JBut the case is fatally defective on another ground, viz., in failing to state that he could not safely go to trial without the witness. For what bouts it that he is a material witness, unless the party, for lack of other witness, is able to prove the same facts, really needs the one absent. For the foregoing reasons the court is of opinion that the judgment of the circuit court should be affirmed. Judgment Aeeirmed.