Davis & Rankin Building & Manufacturing Co. v. Riverside Butter & Cheese Co.

PiNney, J. 1. The objection that the'bill of exceptions had not been properly settled and returned, having been raised for the first time at the argument of the appeal on the merits, came too late. If well founded, the objection should have been raised by motion to strike out the bill. The practice has long been understood as settled that a bill of exceptions may be prepared and signed after an appeal has been taken and return made, and the bill may be transmitted to this court by supplemental return, and used on the hearing as a part of the record. 2. The objection that the printed case was not served fifteen days before the term, was not made until after the [267] argument had been commenced, and came too late. It might have been made by a motion to dismiss the appeal, in like manner as for a failure to procure the return to be seasonably made, or before the commencement of the argument, in which case, if not waived, the cause would be continued for the term. All questions in respect to mere irregularities in practice come too late after the argument has been commenced. 3. The granting or refusing a continuance is within the discretion of the court, but this discretion may be so injudiciously and unwisely exercised that the refusal to continue an action on grounds clearly sufficient may constitute error. The affidavits in this cause we think showed that the plaintiff had used due diligence to prepare for trial, and the nature and kind of diligence, as well as the materiality of the testimony of the absent witnesses. Issue had been joined about two months before the term at which the cause was and could be noticed for trial for the first time. There is no absolute standard of diligence. It depends upon the usual course of procedure and course of business, the situation or location of the absent witnesses or desired evidence, the facilities which máy be employed to obtain it, and all the facts and circumstances of the case. We think the affidavits on this point were sufficient to entitle the plaintiff to a continuance upon the usual terms. One of the affidavits showed that Mr. Lespinasse, one of the most material and necessary witnesses for the plaintiff, had just returned to his home in Chicago from a distant state, and was then so sick that he could not be interviewed and could not endure the exertion necessary in giving his testimony before a commissioner, and of course could not attend court at a point 300 miles distant, to testify on the trial. The affidavits clearly established the materiality of the testimony of this witness, and that the plaintiff expected to prove by him the principal facts relied on, and that no set [268] tlement was in fact made of the matters involved in the action. Sickness at such a juncture is an occurrence against which no ordinary prudence or foresight can provide. Upon this ground alone the continuance should have been granted, and upon the entire showing the refusal to grant it was not, we think, within the fair limits of a wise and judicious exercise of discretion. It is contended, on behalf of the respondent, in substance, that it appear^ from the evidence produced by defendant at the trial that the plaintiff at the time, and as a part of the alleged settlement, received by its agent considerable sums of money in settlement of the plaintiff’s demands, which were paid over to it, and that it cannot now repudiate the settlement without returning the money, and Ihat by so receiving the money it is concluded from questioning the validity of the settlement. One of the affidavits for the continuance, recognizing the fact that the plaintiff had received money from the defendant, denies, in substance, that it was received in full settlement or compromise of the plaintiff’s claim, and therefore it may be said that, so far as the affidavits show, the plaintiff was entitled to the money on its contract, and its right to it did not depend on any settlement or compromise, and so it might well retain it, within the principle of the cases of Hollenback v. Shoyer, 16 Wis. 499, and Leslie v. Keepers, 68 Wis. 123. Whether the transaction thus referred to, when proved in all its particulars, would sustain the defense pleaded by the defendant, formed the issue to be tried upon evidence to be produced in court, and not by the doubtful or uncertain inferences to be drawn from affidavits for a continuance. The propriety of the ruling of the court in denying the continuance must be tested by the affidavits upon which it was made, and it cannot be justified and upheld by reference to the proofs adduced by the defendant on the subsequent trial establishing prima fade [269] its defense, when by the ruling of the court denying the continuance the plaintiff had been practically denied the right of rebutting the defendant’s case. The defendant cannot be allowed to plead the advantages resulting from this erroneous ruling as a defense against its injurious consequences to the plaintiff. We do not think that the ruling of the court on the motion for continuance can be upheld as within the legitimate and fair exercise of discretion, and the judgment of the circuit court must, therefore, be reversed. By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.