Day v. Gelston

Caton, C. J. L. B. Day, one of the defendants below, moved for a continuance of the cause on the ground that a material witness was absent who had promised to attend, but had not been subpoenaed. The court overruled the motion, and we think properly. If a party chooses to take the promise of a witness that he will attend, and on that account neglects to subpoena him, he has no right to ask a continuance on account of his non-attendance. If he will rely upon the promise, he must run the hazard of its being broken. All three of the defendants were served with process. L. L. Day alone appeared and pleaded, and upon the trial the issues were found against him. By some omission no default was taken against the other defendants, and judgment was rendered against L. L. Day alone, who appealed that judgment to this court. A scire facias was then sued out to the next term of the Circuit Court against the other defendants, which was served and one of them appeared and filed two pleas, first, that L. L. Day had appealed the judgment against him to the Supreme Court where it was still pending, and second, non-assumpsit. To the first plea, a demurrer was sustained, and the issue on the second, was found for the plaintiff; whereupon the court made the two last defendants parties to the judgment, formerly rendered against L. L. Day. The demurrer was properly í ,stained to the first plea. The pendency of the appeal upon me judgment against L. L. Day, did not deprive the court below, of jurisdiction as to the other defendants. As to them, the cause was still undisposed of in the Circuit Court, and it stood continued under the general order, and it was unnecessary to have brought them in by scire facias. They were still in court, and at the next term it was the duty of the court to dispose of the case finally, either by defaulting them, or trying such pleas as they should present. We.find no error in the record, and the judgment is affirmed. Judgment affirmed.