Gay v. Kendig

Simon, J. This suit is brought on a promissory note, given as part of the price of a slave sold by one James Noe to the defendant. The answer admits the execution of the note ; but it is alleged that “ the slave, in consideration of which it was given, died within six months from the date of the sale, of a complication of diseases and maladies, which the vendor represented as easily curable, &c.” The case was continued twice on the affidavit of the defendant, who at length was ruled to trial, notwithstanding his efforts to continue it a third time ; and, having been tried on its merits, judgment was rendered in favor of the plaintiff, with legal interest from the maturity of the note until paid; from which judgment, after an unsuccessful attempt to obtain a new trial, the defendant has appealed. This case presents only one question — whether the defendant [474] was entitled to obtain a third continuance, on the production of a-third affidavit showing the absence of the same witness ? The affidavit seems to us insufficient. The defendant does not state that he ever expects to obtain the evidence of the witness, nor when his testimony can be procured. It says that he expects to be able to find him, and that he does not know the residence of the witness; but he does not show that he has used any effort to find it; and if he did use any such effort, the affidavit does not state what efforts were made. The case had been continued twice on the same showing, and we think that to be entitled to a third continuance on the same ground, the defendant should have shown, that he had used, every time, such diligence as to satisfy the court that it was absolutely impossible to procure the evidence, and that there was really a prospect of obtaining the testimony. On the third application, he should have shown extraordinary diligence, as well as the real importance and materiality of the testimony. Not having done so, we are satisfied that the continuance was properly refused. 17 La. 151. 19 Ib. 298. On the merits, it does not seem to us that any error has been committed. The evidence adduced in support of the defence is quite unsatisfactory ; and nothing, in our opinion, has been shown to establish that the defendant is in any manner entitled to the relief by him sought for. The consideration of the nóte being the price of a slave, legal interest was properly allowed from the time of its maturity. 3 Mart. N. S. 185. 6 La. 730. Judgment affirmed.