31 Ill. 170 | Ill. | 1863
delivered the opinion of the Court.
It is objected, that the court below erred.in overruling the appellant’s motion for a continuance. This depends upon the sufficiency of the affidavit upon which the application was based. The affidavit does not state that any efforts had been made, or, if made, that they would have been ineffectual to have procured the attendance of the witnesses. It fails to state where they were at the time of the application; but simply, that they were in service in the United States army. For aught that appears, they may have been within the jurisdiction of the court. The court cannot, judicially, know that the regiment to which they are attached, is beyond the reach of its process.-
Again, there is no statement that affiant has any expectation of procuring the testimony of these witnesses by the next term of the court. It would be erroneous to grant a continuance unless there was a reasonable prospect of obtaining the desired evidence, at some future time. Unless the party can state that he has reasonable grounds to believe, that it can be made available, the party is in the situation of any party, who is unable to prove a fact for the want of evidence. The object of granting a continuance is, that justice may be had thereby, and not merely to prevent a recovery against the party. We think this affidavit fails to show the employment of proper diligence to have auth&iizedAit court to allow the motion.
If it had appeared- that the witnesses were so situated tkat_ their attendance could not be procured, the appellant might have offered to join in a commission, to take their depositions. If it had appeared that the evidence was material, and that ■due diligence had been employed, and such an offer had been made, the court in its discretion might, in case the other party had refused to join in the commission, have granted continuances from term to term until they did join in the commission. And if such an application and offer had been made, and the other party had accepted it, the court would have continued it until the next term. In cases of misdemeanors, depositions of absent witnesses may be taken by consent. The King v. Marphew, 2 Maul. & Sel. 602; Roscoe’s Crim. Ev. 55.
The appellant failed to show sufficient grounds for a continuance, and the judgment is affirmed.
Judgment affirmed.