Kohn v. Short

Howhdii, J. This is a suit on a mortgage note given in part payment of certain lots of ground in this city, by defendant, to which he pleaded the general denial and a failure of consideration. The evidence shows that plaintiff obtained the note before maturity, and fully establishes his right to recover. Defendant’s counsel, however, objected to going to trial and reserved a bill of exceptions to the refusal of the Court to grant a continuance. It appears that the cause was regularly fixed for trial for the-third time, on the 18th June, 1860, and plaintiff’s counsel not being present, although in the Court House, the Judge, upon the suggestion of defendant’s counsel, continued it; but before the order was entered in the minutes, and after notice was given to said counsel to remain for the purpose, the order was modified and the ease continued to the next Monday, 25th June, upon a showing made by plaintiff’s counsel, according to which, and the evidence in connection therewith, we think the Court [292] did not err is reassigning the case to a particular day, and giving notice thereof to the defendant, as there was no fault on the part of the plaintiff or his counsel. The thirty days’ delay for the return of the commission taken out by defendant had, at the time, expired, and a week later, when the case was tried, no cause was shown why it had not been returned nor a statement made of the facts sought to be proven under it. The absence of the defendant from the city, under the circumstances, and the inability of his counsel, at that stage of the case, to state the facts intended to be established, were not a legal cause for a continuance. The counsel must certainly have known the character and object of the interrogatories porpounded to the witness to be examined under the commission. We think there is no error of which the defendant can justly complain. Judgment affirmed, with costs.