Sprague v. Heaps ( 1880 )

Wilson, J,

We think the court erred in denying the motion for a continuance. The motion was based on the absence of two witnesses — Lewis Blenis and James Bryce. The affidavit sufficiently discloses the materiality of their testimony, and states that the defendant knows of no other witnesses by whom he can prove the facts stated. It then sets forth, in substance, that said Blenis & Bryce were and continued to be residents of Chicago until sometime during the latter part of the fall,of 1875; that before affiant heard of the fact, said witnesses had removed to the State of California; that as soon as he learned the same he made diligent inquiries to learn their place of residence, that he might cause their depositions to be taken; that upon learning their first destination was San Francisco, he immediately addressed letters to them at that city,"but has not received any answer; that he has continued to make frequent and diligent inquiries up to the present time of their friends to ascertain their residence, and has just learned that said Blenis is’in business in the country near San Francisco, and is in the city every few weeks, and that affiant has ascertained that his actual residence can be obtained by requesting the post office department there to retain letters addressed to him in that office; that this is the first application he has made .for a continuance, and that he believes .he will be able to obtain the testimon}’- of said witnesses by the next term of the court, and that he is advised by his counsel, to whom he has fully stated his case, that it will not be safe for him to go to trial without the evidence of said witnesses.

While the affidavit is not, in some respects, as specific as might be necessary to justify a second continuance, we think it was sufficient to have required the court to grant a first application.

The defense, as disclosed by the affidavit, was highly meritorious, and for the purposes of the motion the affidavit is to be taken as true.

For the error of the court in overruling the motion for a continuance, the judgment is reversed and the cause remanded for a new trial.

Be versed and remanded.