31 Mo. 462 | Mo. | 1862
delivered the opinion of the court.
This case was heretofore submitted to the court, and an opinion prepared by Judge Napton, in which Judge Ewing concurred, (Judge Scott being absent,) but no judgment was entered; now the parties have agreed that that opinion shall
The only question in this case is as to the propriety of overruling the defendant’s motion for a continuance. There had, it would seem from the affidavit itself, (though the record does not show it,) been a previous continuance granted to the defendants, and the rule of the court required in such cases, the facts which the absent witness was expected to prove to be set out in the affidavit. The facts set out in this affidavit were merely a repetition of the facts relied on in the answer as a defence to the action, namely: That Mosher, the plaintiff, was merely the agent of Pollard & Co., and had no interest in the goods levied on, and that Pollard & Co. were the real owners. It was further alleged that this witness would relate “ facts from conversations of the plaintiff and Aaron Pollard, of the firm of Pollard & Co., sufficient successfully to defend the action.” There is nothing perceived in this statement of the facts which could be regarded as making the affidavit any more specific than if it had been generally stated that the witness was expected to prove the defendant’s case, or that he was a material witness.
But the affidavit fails to give any explanation of the singular delay and negligence which was manifested by the defendants in relation to securing this witness’ testimony. He was not subpoenaed until the 5th November, the case being set for the 8th. The case had been in court for upwards of a year, and it seems no effort was made to secure the testimony until two days before the day of trial, and then the witness had been sick with typhoid fever for several weeks.
All this seeming carelessness may have been consistent with good faith and due diligence; but it should have been explained. We can not say that the court of common pleas exercised its discretion unwisely.
Judgment affirmed.
