Thomas v. Alton , 5 Mo. 534 ( 1839 )

Napton, Judge,

delivered the opinion of the court.

Alton sued Thomas before a justice of the peace on a bond, and obtained judgment, from which Thomas appealed to the circuit court. On the trial in the circuit court, as it appears from the bill of exceptions, it was made known to the court, that one Moses Thomas, who was the security in defendant’s appeal bond, was a ma“ terial witness for the defendant, and the defendant filed amotion for leave to file a new appeal bond, with other good and sufficient security, in order that the said Moses Ihqmas might be used as a witness in his behait. motion was overruled by the court. Judgment went against appellant, and he seeks a reversal in this court,

It was decided by this court at the last JBoonville in a case, (the title of which is not now recollected,) that the court had a right to order the appeal bond to be can-celled for the purpose of letting in a witness, whose timony was material to the party’s defence. To justify the exercise of this power by the court, the party must undoubtedly make out a suitable case. The appellant here appears to have done every thing that could be rea-sonabl y required, He satisfied the court, as appears the record, of the materiality of the witness — proffered good and sufficient sucurity in lieu of the person whose testimony was desired. The court erred in overruling the motion, and its judgment is therefore reversed, and She case remanded.