Barnum v. Adams

Bay, Judge, delivered the opinion of the court. The only question presented by the record in this case, relates to the overruling of the first application of the defendant for a continuance. If error wa| committed in this, it is not cured by the subsequent proceedings in the cause. The motion for a continuance is supported by the affidavit of the defendant, which, in our opinion, is in strict conformance, not only with the statute, but with the rule of the [535] court regulating applications for continuances. If the motion, as in this case, is predicated upon the absence of a material witness, the rule requires that the affidavit shall state the endeavors and means that have been used for the purpose of procuring such testimony ; and it is contended, by the respondent, that the affidavit does not show that the affiant used such diligence, in procuring the attendance of the absent witness, as would entitle him to .a continuance under the statute and rule of the court; we think differently. The cause was docketed for the 19th of May. On the 5th of May a subpoena was issued for the witness, and duly served upon him. On the 23d, the witness not having appeared in obedience to the subpoena, the defendant took out an attachment for him; which was immediately placed in the hands of the sheriff, and made returnable forthwith. On the 26th the cause was called for trial, and the witness being still absent, and the sheriff having failed to execute the writ, by bringing the body of the witness before the court, the defendant applied for a continuance, supported by affidavit, as aforesaid. We are of the opinion that the facts show sufficient diligence on the part of the defendant to have entitled him to a continuance. Judgment reversed and cause remanded ; the other judges concurring.