Searls v. Munson ( 1856 )

Scates, C. J.

The jurisdiction of Lake County Court is made concurrent with the Circuit Court, except in ejectment, &c. Acts 1853, p. 263, Sec. 1. By section 2 process shall be issued and executed in the same manner, and the “ rules, proceedings and practice,” shall conform as near as may be to like rules, &c., in the Circuit Court. An appeal or writ of error lies to the Circuit Court, (Sec. 3,) with many other like provisions conferring the power and jurisdiction of Superior Courts.

Under these provisions, I cannot doubt of the applicability of the act in relation to changes of venue, to parties and causes in this court, and on the same grounds as in the Circuit Court. The petition brings the party within the provision of the statute. There is no apparent reason for a refusal of the change.

The application for a continuance is also full and sufficient, and the cause should have been continued upon it at the plaintiff’s request.

It is true, parties neglecting to subpoena witnesses, do so at their risk of non-attendance. But when witnesses actually attend upon request, the party’s diligence is as complete as if they attended upon subpoena. They may, or may not, be liable to attachment for not remaining; but no court would attach a witness leaving upon sudden sickness in his family, as is shown here; and so the party’s sudden and complete surprise is shown by the departure. The name and residence of witness are given sufficiently, and the facts expected to be shown by him are material and important under the issues. The affidavit was sufficient in every material part, and the cause should have been continued. Eor this is one of the practices of the Circuit Court, to which the County Court must conform, in the exercise of the enlarged jurisdiction, when proper grounds are presented for it.

Judgment reversed and cause remanded.

Judgment reversed,.