Welsh v. Savery

Wright, C. J.[1] No part of the testimony is before us, nor is there anything to show the pertinency of the instructions asked and refused, and the most that can be e] aimed for them is, that they might possibly be correct under a certain state of proof. Not being advised as to the proof in the case before us, we cannot judge of their applicability, and cannot therefore say that they were improperly refused. We are then left to inquire whether the application for a continuance was correctly overruled. We have examined the affidavit with' some care, and are unable to see upon what ground the ruling below was based. It is true that two affidavits were made on different days, the first one being substantially defective. The second one, however, stands upon a basis and presents grounds, so substantially different from the first, that it cannot be claimed with justice, that the defendant had no right to be heard upon such second application. This objection being thus obviated, we must look to the sufficiency - of the affidavit. As already intimated, we think it complies, substantially and fully, with the law. And we see no reason why defendant was not, under the most strict rule, entitled to his continuance. Where a party clearly brings himself within the law, in applications of this character, and no special circumstances are shown, as that prior continuances have been granted, or something of that kind, it is the duty of the court to grant the motion, and a refusal to do so, may and will be, reviewed [244] by this court. It is said, however, that this affidavit is defective in that the affiant states, that he knows of no other witness by whom the facts detailed can be as fully proved, as by the one alleged to be absent, whereas the law requires that he shall state that he knows of no other witness by whom the facts can be fully proved. In our opinion, however, the objection is without weight. The law does not contemplate, that a party is entitled to a continuance, only in the event that a witness is absent, by whom he can fully prove particular facts or a particular fact. But, if from the witness, he can obtain testimony, tending to substantiate particular facts, or if his testimony will materially assist in determining the issues joined, he has a right to his presence, (or deposition,) unless there is some other witness by whom the same facts can be substantiated, to the same extent as they would be by the absent witness. It is that which the absent witness would swear to, if present, that the affiant claims the benefit of by his affidavit, and when he swears, that he knows of no other witness by whom he can prove such fact or facts, as fully as he can by the one thus absent, in our opinion he complies with the law. Under our practice, the adverse party may admit, that the witness, if present, would swear to the facts stated, and thus avoid a continuance ; but he is not required, as formerly, to admit the truth of the matters thus stated, or have his cause continued. Nor, on the other hand, need the party applying state in his affidavit, that he cannot fully prove, that is, that he cannot fully substantiate or demonstrate, by any other witness, the facts or matters which he expects to prove by the absent witness. But if he knows of no ' other means within his reach, by which he can supply the defect in his testimony, occasioned by the absence of the witness named, and makes this as well as the other matters required by the Code appear, he substantially, and we think even technically, complies with the law, and should have time ordinarily to obtain his proof. Because, therefore, this continuance was improperly refused, the judgment is reversed and cause remanded. Footnotes [[1]] Stockton, J., dissenting;