53 Ind. 269 | Ind. | 1876
This is an action brought by the appellees against appellants, founded on a judgment rendered by the Supreme Court of Niagara County, in the State of New-York. Suit was commenced on the 25th day of February, 1874. The summons was issued on the same day, and served on the 13th day of March, 1874, by leaving a copy at the residence of Anson Wolcott. At the March term, on the 25th day of March, 1874, Wolcott appeared to the action. At the same term, answers were filed, issues joined, and the cause continued. At the October term, 1874, Wolcott filed the following affidavit in the case :
“The defendant, Anson Wolcott, being duly sworn, on oath says, that he cannot safely go to trial in the above entitled cause, on account of the absence of George Aylesworth, a material witness for the defendant on the trial of said
Upon this affidavit Wolcott moved the court for a continuance of the cause. His motion was overruled, and exception taken. This ruling of the court presents the only question insisted upon in the case.
The affidavit is insufficient. To have notice of a suit by service of the summons on the 13th day of March, 1874, appear to the action on the 25th day of the same month, and make no substantial effort to obtain the witness before the 21st of October following, only five days before the commencement of a subsequent term of the court, shows a great
The judgment is affirmed, with ten per cent, damages* and costs.