Hirsch v. Ferris , 1 Colo. 402 ( 1871 )

Wells', J.

This action was brought to the August term, 1869, of the Arapahoe probate court. Process was served on the 10th day of July. On the 17th day of August, being at the return term, the defendant, having pleaded, applied for a continuance, which application was overruled. A trial was afterward had on that same day, and judgment was given for the plaintiff.

The refusal of the application for continuance is the only matter assigned for error.

The ground of continuance set forth in the affidavit was the absence of a material witness ; the facts set forth as to be proved by this witness appear to us to be material, and it seems to be admitted by counsel that they are so. The only remaining question is, whether diligence had been used to secure the attendance of the witness.

Upon this point 'the affidavit sets forth that the absent witness was then, and at the commencement of the suit, a resident of Cheyenne, in the territory of Wyoming ; that from the time of the commencement of the suit defendant had been endeavoring to secure a settlement of the matter in controversy, and had hoped and expected to succeed in these efforts until within three secular days next preceding the making of the affidavit, when he learned for the first time, definitely, that an adjustment of the controversy was impossible; that the witness named left the territory to go to Cheyenne within a few hours after the commencement of the action and had never returned, and that he departed without defendant’s knowledge, and while defendant was endeavoring to secure a settlement with the plaintiff, and still reasonably supposed that such settlement would be effected.

We think that considering the short peidod which had elapsed between the commencement of the suit and the departure of the witness, and that such departure was without defendant’s knowledge, the failure to serve him with subpoena cannot fairly be said to be negligence.

Nor do we think that for the omission to secure the deposition of the witness the application should have been denied.

But a little more than one month had elapsed between the service of summons and the application ; it is true the deposition might, for any thing we can see, have been obtained within that time; but this would have been an exercise of the highest degree of diligence, and this at the first term, especially in a court holding its sittings upon every alternate month.

For this error the judgment of the probate court will be reversed and the cause remanded for further proceedings.

Reversed.