Lizardi v. Arthur

16 La. 577 | La. | 1840

Morphy, J.,

delivered the opinion of the court.

The defendants complain that an application for a continuance made by their counsel, was improperly overruled. From the bill of exceptions taken to the judge’s opinion, it . . ° ' . appears that certain witnesses, summoned in the cause,having fa'le<l 1° attend, they were ordered to be attached. At about 3 o’clock, P. M., the return of the sheriff was, that they could not be found ; thereupon, the counsel moved for time sen(^ f°r defendants, that they might make their oath as materiality of the testimony of said witnesses. This , i » • . was refused, on the ground that parties are bound to be m court at their own peril. • The counsel then tendered his own affidavit, and rested on it his application for a continuance. It was, in our opinion, properly refused. The affiant does not swear (even to the best of his knowledge and belief) that he expects to prove the facts set. forth in his affidavit; but that he is informed, and was told by his clients that the witnesses would prove such facts. Had the defendants been absent from the state under circumstances not suspicious, the counsel’s knowledge of the facts, although derivative, might perhaps have been considered sufficient; as we have held in Penne vs. Tourné, 2 Louisiana Reports, 463 ; but they being in the city, and their absence from the court house unaccounted for, an affidavit of this kind was clearly inadmissible. But. the counsel for the appellants insists that this affidavit was wholly unnecessary, because not called for by the adverse party, pursuant to article 466 of the Code of Praclice; and that, article 464, entitled him to a continuance without it. Whether called for or not, the affidavit was no doubt made from a sense of its necessity at the time, but the counsel we think is mistaken, when he imagines that under the latter article of the Code, it was not incumbent on him to make any showing at all in support-of his application. It requires of the party who wishes a continuance, to prove that he has not been able to procure the necessary evidence, <^c.; the party, then, or his attorney, must be teady to satisfy the court of the necessity and materiality of the evidence wanted, by disclosing the facts expected to be proved. Where the process of attachment had proved ineffectual, the defendants were to have entitled themselves to a continuance by the same affidavit which would have been required of them,.had no such process issued. Code of Practice, articles 464 and 471; 12 Louisiana Reports, 256. The right to obtain continuances are of primary importance to a correct administration of justice, but it is not unfrequently very much abused ; for this reason it is that some discretion is left to the court, who, while they protect parlies in the fair exercise of this right, should be vigilant in preventing its abuse. The inferior courts have better opportunities than we can possess of distinguishing the cases where the purposes of justice required a continuance from them, where a party seeks only delay and procrastination. With their decisions in questions of this kind we will not interfere, unless they^be clearly erro-" neous.

the [¡,^¡¡£sses attend, is necesfmm the "state* !';e of continuance may though hí¡ Jno',le'1ge of to, is derivative,

It is, therefore, ordered and adjudged, that the judgment of the District Court be affirmed, with costs.