Adams v. Colton , 3 Ill. 71 ( 1839 )

Browne, Justice,

delivered the opinion of the Court:

This was an action of assumpsit brought by Rufus Colton against Ripley E. W. Adams, in the Circuit Court of Will county. At the April term, 1838, defendant made an application for a continuance founded on his affidavit of the absence of Joel Jenks, a material witness, who resided in DeKalb county, — to which county a subpoena was issued and sent on the 7th of March, 1838, and returned not found, — the said witness having, without the knowledge of the defendant, removed from that county. The affidavit stated that the defendant expected to prove by said witness, an item of $150, in the defendant’s account of set-off; that he expected to be able to procure the attendance of the witness at the next term ; that he knew of no other witness by whom he could prove the same fact; — and that the affidavit was not made for delay. The motion was overruled by the Court.

This affidavit clearly shows that every requisite of the statute was complied with, for the purpose of getting the cause continued. Diligence has been used; the name and residence of the witness, and what particular fact to be proved — all these facts appear in the affidavit.

The Court erred in refusing to continue the cause. The judgment of the Circuit Court of Will county is reversed with costs, and the cause remanded for a new trial⁽¹⁾.

Judgment reversed.

(1) R. L. 489 § 11; Gale’s Stat. 531, 540 ; Acts of July, 1837, 109 § 2.