3 S.D. 330 | S.D. | 1892
October 24, 1884, one D. A. Temple shipped from Freeman, territory of Dakota, a carload of cattle by the Chicago, Milwaukee & St. Paul Railway, consigned to D. A. Temple, St. Paul, Minn., care of Pierce Bros., Minnesota Transfer. A bill of lading was given by the railroad company, in which said D. A. Temple was named as consignee, to order of George W. Stone & Co., of Parker, Dak. This bill of lading was delivered by the railroad company to George W. Stone & Co., who drew a draft for $563 on Pierce Bros., to whose care the cattle were shipped, attached the bill of lading to it, and forwarded it by mail for collection to the First National Bank of St. Paul. The draft was returned protested for nonpayment. In the meantime the railroad company delivered the cattle to Pierce Bros, without the consent or order of George W. Stone & Co., who held the bill of lading. Subsequently the firm of George W. Stone & Co. was dissolved, and the bill of lading was duly transferred to George W. Stone, who brought this action of conversion against the railroad company to recover the value of the cattle. In defense to this action the railroad company alleges — First, that said Pierce Bros, paid said George W. Stone & Co. in full for said cattle; second, that D. A. Temple shipped at about the same time two carloads of sheep and this carload of cattle, and drew drafts on the same for $570 and $563, respectively; that said drafts represented, respectively, the value of the sheep and the cattle; that said drafts were presented to Pierce Bros., who paid one of said drafts, and received the cattle therefor, and refused to pay the other, because, as alleged, the sheep had been condemned as scabby, and that they were returned to George W. Stone & Co.
It has been very conclusively settled that to entitle a party to a continuance of a cause, when duly called for trial, on account of the absence of witnesses, the affidavit to support the application must state: (1) That the evidence of such witnesses will relate to the merits of the case, and is material. Oil Works v. Brown, 7 Abb. Pr. (N. S.) 382; People v. Vermilyea, 7 Cow. 369; Sellars v. Kelly, 45 Miss. 323; Bank v. Chester, 55 Cal. 49; Green v. King, 17 Fla. 452; Hubbard v. State, 7 Ind. 160; Steele v. People, 45 Ill. 153. (2) That due diligence has already been exercised in the endeavor to procure it. Conner v. Sampson, 22 Tex. 20; State v. Underwood, 76 Mo. 630; Wolcott v. Mack, 53 Ind. 269; Lillienthal v. Anderson, 1 Idaho, 673; Moon v. Helfer, 25 Kan. 139; Ingalls v. Noble, 14 Neb. 272, 15 N. W. Rep. 351. (3) An assurance of the probable presence of the witnesses, or that their testimony can be procured, at the time proposed. Brown v. Moran, 65 How. Pr. 349; Deming v. Patterson, 10 Ind. 251; State v. Tilghman, 6 Iowa, 496; Polin v. State, 14 Neb. 540, 16 N. W. Rep. 898; Lee v. Quirk, 20 Ill. 392.
As to the materiality of the testimony of the absent witnesses. The affidavit states specifically what is expected to be proved by the witnesses, the Temples and Pierce Bros. That Pierce Bros, will swear that D. A. Temple shipped two carloads of sheep to them October 24, 1884, and drew a draft on said Pierce Bros, against said shipment, payable to the order of George W. Stone & Co. for either $570 or $450. That on the 26th of October, 1884, D. A. Temple shipped the cattle in controversy to Pierce
The evidence of the absent witnesses being material, do the facts alleged in the affidavit show that due diligence had been exercised in obtaining the witnesses? The record shows that the case has been pending for several years; that E. C. Kennedy, Esq., was llie attorney for the plaintiff in bringing the suit; that some time during the winter of 1889 or 1890, the attorneys for plaintiff and defendant had a conversation in which it was agreed that they would go to St. Paul, where these witnesses resided, and take their depositions; that at the time agreed upon, Mr. Kennedy, the attorney for plaintiff, could not go; that notice was afterwards served upon him that depositions would be taken; that the attorney for plaintiff again came to the attorney for defendant, saying he could not go at the time specified in the notice, and asking that the matter be deferred until June, 1890. At that time the attorneys had a further conversation about the matter, and the attorney for the plaintiff said he was going to step out of the case, and that other attorneys would take his place, and it was then agreed between them that no further steps should be taken until another attorney should be substituted. No notice of substitution was ever served upon, or any other notice given, the áttorney for the defendant, until Saturday, the 7th day of September, — about three days before the case was called. At that time the defendant informed the court and the attorney for the plaintiff that he could not try the case at that term of court unless an agreement as to some of the facts could be entered into. No agreement was effected. We think, under the circumstances as detailed, due diligence has been exercised by the defendant in procuring the evidence desired, and that further and ample time should have been given it to procure