11 Cal. 21 | Cal. | 1858
Baldwin, J., and Field, J., concurring.
This cause was tried below by a jury, and a verdict rendered for plaintiff. The defendant moved for a new trial on the ground of surprise, and in support of his motion filed affidavits setting out that one Henry Day was a necessary witness for the defense, that he had. been duly served with a subpoena before the trial, and his fees tendered him, but that he did not attend on account of sickness.
It also appears by the statement that, at time of the trial, defendants’ counsel stated in Court that the witness, who resided sixteen miles from the place of trial, had been subpoenaed by defendants, that the party who served the subpoena had neglected to return it, in consequence of which neglect, they were unable to make such proof of service as would entitle them to an attachment against the witness, and that they could not ask for a continuance of the cause, for the same reason.
The Court below granted a new trial, and plaintiffs appealed.
The order of the Court below was clearly erroneous. The facts set out in the affidavits in support of the motion for a new trial should have been made the foundation of an application for a continuance, so that the plaintiffs might, if they desired, have avoided the delay by admitting the evidence as stated in the affidavit of defendants. “ That a
“ The parties,” says Judge Kent, in Alexander v. Bryan, (2 John. Cas., 318) “ must come to trial prepared, at their peril, and if either party has any good excuse for not being prepared, he is entitled of right to a postponement of the trial. It has, therefore, been repeatedly held, that the subsequent allegation of a party that he was not prepared, is no reason for granting a new trial, unless it be founded on the discovery of testimony of which the party was not at the time apprised.
By failing to apply for a postponement of the trial, plaintiffs waived their right to move for a new trial for reasons which existed at the time of the trial.
Judgment reversed.