McBain v. Enloe

Trumbull, J. This was an action of debt on a judgment rendered in the State of Tennessee. Pleas nul tiel record, and payment. The suit was commenced in the Massac Circuit Court, and taken, by change of venue, to the Circuit Court of Union county, where it was finally tried, and resulted in a judgment against the defendant below, for six hundred ninety-one dollars and forty cents. Numerous errors have been assigned for the reversal of the judgment, some of which have no foundation in the record. Such is the character of the seventh error, which is, “ that the court erred in submitting the issue of nul tiel record to the jury.” The record, in reference to this issue, is strictly formal and correct. It shows that it was submitted to, and tried by, the court. Whether the transcript of the judgment in Tennessee was properly received in evidence, to prove the issue, this court cannot determine, as it is not set out in the bill of exceptions, and, consequently, is not before us. The fact that the clerk has copied into the record what purports to be a transcript pf the judgment upon which the suit was brought, does not make it part of the record. Petty v. Scott, 5 Gilm. 209. The only issue before the jury was upon the plea of payment, and none of the instructions asked by defendant below, had any application to that issue, and for that reason, if none other, they were properly refused. The error alleging that the court below erred in refusing a motion for a second change of venue, has been very properly abandoned, and there is nothing in the record to sustain the one complaining of the refusal to grant a new trial. The remaining errors all resolve themselves into one — the refusal of the court to grant a continuance. Two causes were assigned for asking a continuance : First, that the record of the change of venue from Massac county, was not perfect; and, second, that defendant was not prepared for trial, on account of the absence of witnesses. Upon the first point, it is impossible to conceive how the defendant could be prejudiced by the defects in the record complained of. The transcript of the record from Massac county, showed that the venue had been regularly changed on the defendant’s application, and it would have been improper to allow him, by affidavit, to contradict the truth of that record. If enough appeared to give the Circuit Court of Union county jurisdiction of the cause, what matter was it to the defendant, how the order making the change of venue was made up, how the papers were transmitted, or what motions, if any, were pending in the Massac Circuit Court, which could have had no jurisdiction of the case, after the venue was changed to Union county? It surely did not lie in his mouth to object to a trial in the court to which, at his own instance, the cause had been removed. The other cause for a continuance was equally untenable. The affidavit stated that the defendant expected to be able to prove, by certain absent witnesses, whose testimony he had not had time to procure, “ that he had paid the whole, or some part, of the said sum of money in the said plaintiff’s declaration mentioned.” This was too indefinite. The affidavit left it wholly uncertain how much or what part the defendant expected to prove had been paid, and consequently put it out of the power of the plaintiff to avoid a continuance by admitting the amount. To entitle a party to a continuance under the statute, the facts expected to be proved by the absent witnesses should be set forth with such certainty that the opposite party can, if he thinks proper, admit them, and go to trial. Rev. Stat. ch. 83, § 13. The plaintiff might have been willing, for the sake of avoiding a continuance, to have admitted the payment of some part of his debt, but he had a right to know how much he would be admitting, by confessing the truth of the affidavit; and as the defendant failed to give that information, he had no right to demand a continuance. The refusal of the court to allow the defendant to file new and further affidavits for a continuance, after the motion upon the affidavits filed had been denied, cannot be assigned for error. It was an application addressed to the discretion of the court below, and its decision upon it cannot be revised in this court; but as a general rule it would.be highly improper to allow a party whose affidavit for a, continuance had been held to be insufficient, subsequently to amend and make it good. The judgment of the Circuit Court is affirmed, at the costs of the plaintiff in error. Judgment affirmed.