15 Wis. 394 | Wis. | 1862
By the Court,
We do not think there was any abuse of discretion on the part of the circuit court in denying the motion for a continuance in this case. The application for a continuance was founded on two affidavits, one made by the appellant, Bradley, and the other by the attorney of the appellants, Mr. Pease.
Mr. Pease deposes in substance in his affidavit, that he was attorney for both defendants; that Campbell made a statement of his case to him and the facts within his, Campbell's, own knowledge, upon which he relied for his defense to the action, which he expected to prove upon the trial by his own testimony, and which could not be proved by any other person ; that deponent believed such statement was fairly and truthfully made, and showed that his client had a good defense to the whole action upon the merits ; further, that in November, 1860, Campbell went into the interior of the state
Bradley, in bis affidavit, states in effect, that be bad a good defense to tbe whole action upon the merits, wbicb be expected to establish by bis co-defendant, Campbell; that be could not safely proceed to trial without tbe testimony of Campbell, who is in Texas, but is unable to return home or have his testimony procured by commission, on account of tbe rebellion and convulsions existing in tbe south.
The above constitute tbe material portions of tbe affidavits relied on in support of tbe motion for a continuance. And while giving them their full scope and effect, we still think they are insufficient to authorize tbe granting of tbe application. It will be noticed that neither affidavit states what facts it was expected Campbell would testify to on tbe trial; It is stated that he is a “ material witness,” and that tbe facts constituting the defense were within bis personal knowledge, &c. But tbe affidavit should at least have stated tbe substance of tbe testimony expected to be given by tbe absent party. Campbell was a party to tbe suit, directly interested in tbe result, and might have stated things to bis attorney wbicb be might not have been willing to testify to on tbe witness stand. At all events, it is easy to understand why a party to tbe suit may have a stronger motive than a disinterested witness, for keeping out of tbe way for tbe purpose of postponing tbe trial or delaying tbe judgment. And it is not too rigid a rule, to require, in case of an application for a continuance on tbe ground of tbe absence of a party, who is a material witness, that tbe affidavits should disclose fully tbe precise facts, or tbe substance of tbe testimony, expected to be proven by such party. Tbe court can then determine whether such testimony is material or not. An application to postpone a trial' on account. of the absence of a party, stands upon somewhat different grounds from an applica
An objection is taken to tbe sufficiency of tbe complaint, but we think it good in substance. If not sufficiently specific and clear, tbe defendant might bave made bis motion that it be made more certain. Still, by tbe strongest implication, the averments of tbe complaint show that tbe railroad ties were delivered to and received by tbe defendants.
We are of tbe opinion that there is ño error in tbe record, and that tbe judgment of tbe circuit court should be affirmed.
