Vanblaricum v. Ward

1 Blackf. 50 | Ind. | 1819

Scott, J.

On the subject of this case there have been various decisions. We consider a motion for a continuance, as an application to the sound, legal discretion of the Court, over which, if improperly used, a Superior Court will exercise a control. The rules and practice of Courts are now so well settled, that we are not left to vague uncertainty in this, more than in other principles of common law. There are many cases in which a party, without any laches on his part, may, by the unexpected absence of a witness, be placed in such a situation, that, without a continuance, he cannot possibly obtain his right; and to refuse a continuance in such cases, is tantamount to a refusal of justice. The case cited, 6 Cranch, 218 ⁽¹⁾, places a motion for a-continuance on the same footing with a motion for a new trial; and there appears to be no good reason for a distinction. It has been decided by (his Court, that a refusal to grant a new trial may be assigned for error ⁽²⁾. A. refusal to grant a continuance maybe assigned for error also.

The affidavit in this case is substantially good, and the Court erred in refusing a continuance.

Per Curiam,

The judgment is reversed, and the proceedings up to the motion for a continuance are set aside, with costs. Cause remanded for further proceedings, not inconsistent with this opinion.

(1) The M. I. Co. of Alexandria v. Hodgson. According to that case, the refusal to allow a plea to be amended, or a new plea to be filed, or to grant a new trial, or to continue a cause, cannot be assigned as error. In Fa., the refusal to grant a continuance, may be assigned for error. Higginbotham v. Chamberlayne, 4 Munf. 547. So also in Ky., Smith v. Snoddy, 2 Marsh. 382. — Davis v. Gray, 3 Littell, 451.

(2) Goldsby v. Robertson, ante, p. 21.