Cottrell v. Giltner

[274] By the Court, WhitoN, C. J. We do not see any error in tbe order of the Circuit Court appealed from. It appears tbat the case had been referred to a commissioner to take proofs, and that further testimony was heard in open court. At the time when the court was,engaged in hearing,.the additional testimony, the affidavits were submitted upon which the appellant founded his motion. The affidavit of Giltner sets forth that the testimony of a witness, which had been taken on the part of the complainant, was untrue; and that this fact could be established by witnesses, whom he named in his affidavit. It further appears that one of the witnesses was produced by the defendant and examined before the court. The affidavit of the solicitor, or counsel for the defendant, stated that he had made inquiries for one of the wit* nesses named in the affidavit of Giltner, and had endeavored to procure his attendance; that he had been informed and verily believed that he was unwell, and unable to attend as a witness. Upon these affidavits the motion to extend the time for taking proofs was founded. It is to be observed that in neither of them is there any averment of merits. •The principles which govern appellate courts in disposing of questions of this nature, we suppose, are these: that the order ought not to be reversed, unless there appears to have been an abuse of discretion by the judge who made the order which is the subject of the appeal. In regard to all subjects of this nature, the judge before whom the cause is tried must exercise a sound discretion, and although we might be satisfied that we should have sustained the motion, we should not reverse the order denying it, unless we should be also satisfied that the judge had abused the discretion confided to him. W e see no evidence of any such abuse in the case before us. The bill of complaint was filed to foreclose a mortgage, and the defence set up was usury; time had been given to take testimony, and one of the witnesses, whose testimony was desired by the defendant, had already testified before the commissioner. [275] The affidavit of Giltner states that the testimony of one of the witnesses on the part of the complainant was untrue, and that he made his affidavit as soon as he could get it drawn by his counsel, after he heard what the testimony was. But we are not informed by the affidavit, nor in any other way, how long the testimony had been taken, and had been in the possession of the court at the time when the affidavit was made. It is also worthy of remark, that there is no denial on the part of the counsel for the defendant of knowledge of the testimony'of the complainant, which Giltner says in his affidavit is untrue. The counsel for Giltner may have known for a long time prior to the hearing what the testimony of the complainant was, and have had ample time to produce testimony on the part of the defendant to rebut it. Under these circumstances we cannot say that the judge abused the discretion confided to him by refusing to give the defendant further time to procure testimony. The order appealed from must therefore be affirmed. Order affirmed.