The action is replevin. In the trial court the plaintiff recovered judgment for possession and damages. The defendant appeals, and assigns for error, among other things, the refusal of the court to permit it to file its application for a continuance and to entertain a motion for a continuance.
The record discloses the following facts: The •cause was called for trial in the absence of defendant’s attorney, who had charge of the case. Another attorney acting for him informed the court that there was some understanding between counsel that the trial of ■.the cause would be postponed until the return of the attorney in charge of the case, to which the court very properly replied that it could pay no attention to agreements of counsel but would proceed with the trial of the cause. The attorney thereupon informed the court that one of the defendant’s witnesses, who .had been •duly subpoenaed, was absent; that an attachment which was issued for the witness had not been returned, and that he was not prepared to go to trial without the absent witness. The court thereupon ordered a jury to be called. Before the jury was impaneled, the
After verdict, and accompanying its motion for new trial, the defendant’s regular attorney tendered a formal affidavit for a continuance, and, the counsel for plaintiff in open court consenting that it might be done, he prayed that such affidavit should be considered filed as of the day of trial. This affidavit, which is preserved in the transcript, shows sufficient diligence, and shows that the testimony of the absent witness was material, and complies in other respects with the statutory requirements of an affidavit. The court refused to permit the affidavit to be filed as of the day of trial, but ordered it to be filed as of the date of its actual filing, at which time, of course, it could perform no office whatever, besides disclosing its contents.
While it is well settled that the granting of a continuance is to a great extent within the discretion of the trial court, it is equally well settled that such discretion is judicial in its character and subject to review on appeal. It was decided in McLane v. Harris,
Nor can it be said that the appellant was bound to-produce and tender its written application for a continuance after it was informed by the court, in substance, that any application it would make would be unavailing. The rule in this state is that, where it clearly appears that a tender, if made, would have been unavailing, the showing of a tender is not essential. McKnight v. Watkins,