White Sewing Mach. Co. v. Simpson , 10 S.D. 448 ( 1898 )

Fuller, J.

This action, against the defendant Simpson, as principal, and his co-defendants, as sureties, on a certain bond, by which, it is alleged, they became obligated in the sum of $2,0Q0, was tried to a jury, resulting in a judgment for plaintiff, from which, and an order overruling a motion for a new trial, the defendants Williams and Thomas appeal.

On account of an absent witness, when the cause was reached for trial appellants moved for ,a continuance upon an affidavit found in effect by the court to be meritorious and sufficient, both as to form and substance, but which was substantially denied; and this ruling thereon was m'ade the basis for the only assignment of error that requires attention. Upon the showing made, the court ordered ‘ ‘that the defendants Selleck, Williams, and Thomas be granted the continuance unless the plaintiff will admit that the transcript of the evidence of said absent Simpson, as taken by the reporter at the former trial of this cause, may be read at this trial.” Respondent readily consented to the reading of the transcript as above indicated, and the motion for a continuance was overruled, to all of which appellants saved an exception. The affidavit recited numerous material matters not contained in the transcript, concerning which the witness had not been interrogated at the former trial, and which the court, by granting a continuance conditionally, must have regarded as facts within the issues- presented by the pleadings, and of which appellants were deprived by an order permitting their adversary to determine, not only whether a continuance should be granted, but to arbitrarily exclude evidence upon which appellants measurably relied, and to determine for them, in advance, just what should be submitted therefor. After finding the motion meritorious, and based upon substantial ground, appellants were entitled to a continuance, as a matter of right, unless respondent expressed a willingness to admit that the absent 'witness would, if present, testify as stated in the affidavit for a continuance. 4 Enc. PI. & Prac. 86G, and the author’s supporting citations. In Peck v. Lovett, 41 Cal. 521, the case was reversed because the admission of plaintiff upon which a motion for a continuance was overruled did not cover all the material facts to which, according to his affidavit, the defendant expected the absent witness, if present, to testify. The judgment appealed from herein is reversed, and the case remanded for a new trial.

Rehearing denied, March 16, 1898.