Langener v. Phelps

Sherwood, C. J. The application for a continuance was very properly denied. Not a particle of diligence was used by plaintiffs. The witness lived in a foreign jurisdiction, yet no effort was made to be ready for trial, by taking his deposition. Nor when he came within the jurisdiction of the court, was any subpoena served upon him. The fact that he was present at a previous time during the term and trial, and that he promised, as it is said, to return and testify when the cause came on for hearing, can be of no more avail than if the witness were a resident of this State. A party who, instead of relying on legal process, chooses rather to rely on the promise of his witness, has no ground of complaint if such promise does not pass as currently with the court as it did with himself. These remarks are made as if a promise had really been given by the witness to return as stated; but the affidavit for the continuance, which is to be taken most strongly against the affiant, will not admit so liberal a construction. We affirm the judgment. Norton and Ray, JJ., concur; Hough and Henry, JJ., dissent.