1 Idaho 164 | Idaho | 1867
delivered tbe opinion of tbe court,
Tbis cause was tried in tbe district court, and judgment rendered for the plaintiff. Before going into tbe trial, tbe defendant filed bis motion for a continuance on tbe ground of tbe absence of material testimony, supporting tbe motion by bis affidavit setting forth tbe grounds, and it having been-overruled tbe plaintiff took exceptions thereto. After tbe trial tbe plaintiff moved for a new trial, and upon tbis motion used the same affidavit as in tbe former one, alleging error in tbe first ruling; and it having been overruled, plaintiff took bis exception and brings tbe ease into tbis court, and assigns as error:
1. That the court below erred in refusing to grant tbe continuance asked for.
2. That tbe court below erred in denying tbe motion for a new trial.
Tbe case is one of considerable importance in practice, and we desire to settle tbe point upon its merits. An application for a continuance is one addressed to tbe discretion of tbe court before which it is made. By tbis it is not meant an arbitrary discretion, controlled by caprice or whim, but a sound and impartial discretion, which should be supported by all tbe facts and circumstances appertaining to tbe case. It belongs to that class of applications which can not in tbe nature of things, be defined with such accuracy and certainty as is attainable in other cases; and hence, while there is some approximation to rules in matters of discretion, it is only an approximation, and nothing more; and hence, courts of review have uniformly refused, to disturb a ruling on such questions unless it is shown that tbe discretion was abused and tbe ruling arbitrary.
In tbis case tbe affidavit is in tbe usual form, and if there was nothing in tbe circumstances surrounding tbe whole
I see nothing in this case to show that the denial was not in the exercise of a sound and wise discretion. As the errors assigned rest on this one point, the above is sufficient to dispose of the case.
Judgment affirmed.