Moran v. McCullum

Irvine, C. McCullum brought an action in replevin against Moran before a justice of the peace. On the return day an adjournment was granted, on the request of the defendant and by consent of the plaintiff, for seventeen days. When the day to which the cause stood adjourned came, the de [450] fendant filed a motion for an adjournment for thirty days further and supported the same by his affidavit as follows: “James Moran, the defendant in this action, being first duly sworn, on his oath says he cannot safely proceed with the trial of said action at this time for the want of material testimony for the defense which he expects to procure. Wherefore he requests of the court that said cause may be continued for thirty days from this date.” The motion was overruled and after judgment for the plaintiff the defendant prosecuted error to the district court, Avhere the judgment of the justice was affirmed. The defendant noAV prosecutes error to this court from the judgment of the distinct court. The sole question raised is the sufficiency under the circumstances above stated of the affidavit for a continuance. Sections 959, 960, and 961 of the Code of Civil Procedure provide for adjournment of trials before justices of the peace. Section 959 provides for certain cases where the justice may adjourn the trial upon the return day without the consent of either party; and closes as follows: “If the trial be not adjourned it must take place immediately upon the return of the summons.” Sections 960 and 961 are as follows: “Sec. 960. The trial inay be adjourned upon the application of either party, without the consent of the other, for a period not exceeding thirty days, as follows; the party asking the adjournment must, if required by his adversary, prove by his own oath, or otherwise, that he cannot, for Avant of material testimony Avhich he expects to procure, safely proceed to trial. “Sec. 961. An adjournment may be had at the return day, or at any subsequent time to .which the cause may stand adjourned, on the application of either party, for a period longer than thirty days, but not to exceed ninety days from the time of the return of the summons, upon compliance with the provisions of the preceding section, and upon proof by the oath of the party, or otherwise, to the satisfaction of the justice, that such party cannot be [451] ready for trial before the time to which he desires an adjournment for the want of material evidence, describing it, that the delay has not been made necessary by any act or negligence on his part since the action was commenced, and that he expects to procure the evidence at the time stated by him.” In Belcher v. Skinner, 28 Neb., 91, and in Coombs v. Brenklander, 29 Neb., 586, it was held that an affidavit in the language of section 960 was sufficient to entitle^ a party to a continuance not exceeding thirty days, but’ in both cases the application was made on the day when the cause was first set for trial. In Belcher v. Skinner it is said that this latitude is allowed because the statute seems to regard thirty days as not an unreasonably short time to prepare for trial. In the case before us one adjournment had been had at the defendant’s request, and the fact that the plaintiff consented is not material, because section 960 demands an affidavit only when required by the adverse party. Possibly, though this we do not decide-, where the first adjournment is for less than thirty days, a further adjournment might be had under section 960 by general affidavit, provided the two adjournments together would not exceed thirty days; but section 961 plainly contemplates that in order to procure an adjournment extending more than thirty days from the return day the affidavit must be according to the requirement of that section. The affidavit here filed was insufficient to justify an adjournment extending beyond thirty days from the return day. Aeeibmed.