Winslow v. Bradley , 15 Wis. 394 ( 1862 )

By the Court,

Cole, J.

We do not think there was any abuse of discretion on the part of the circuit court in denying the motion for a continuance in this case. The application for a continuance was founded on two affidavits, one made by the appellant, Bradley, and the other by the attorney of the appellants, Mr. Pease.

Mr. Pease deposes in substance in his affidavit, that he was attorney for both defendants; that Campbell made a statement of his case to him and the facts within his, Campbell's, own knowledge, upon which he relied for his defense to the action, which he expected to prove upon the trial by his own testimony, and which could not be proved by any other person ; that deponent believed such statement was fairly and truthfully made, and showed that his client had a good defense to the whole action upon the merits ; further, that in November, 1860, Campbell went into the interior of the state ^■'e:x;as’ where he supposed be now was; that Campbell wrote in May, .1861, saying that be expected to be present at the term of the circuit court of Jefferson county, but that owing to tbe rebellion, blockade, and restrictions of tbe local authorities in tbe south, Campbell bad been unable to return, and if a continuance were granted,' be believed bis client would be at tbe next term of court.

Bradley, in bis affidavit, states in effect, that be bad a good defense to tbe whole action upon the merits, wbicb be expected to establish by bis co-defendant, Campbell; that be could not safely proceed to trial without tbe testimony of Campbell, who is in Texas, but is unable to return home or have his testimony procured by commission, on account of tbe rebellion and convulsions existing in tbe south.

The above constitute tbe material portions of tbe affidavits relied on in support of tbe motion for a continuance. And while giving them their full scope and effect, we still think they are insufficient to authorize tbe granting of tbe application. It will be noticed that neither affidavit states what facts it was expected Campbell would testify to on tbe trial; It is stated that he is a “ material witness,” and that tbe facts constituting the defense were within bis personal knowledge, &c. But tbe affidavit should at least have stated tbe substance of tbe testimony expected to be given by tbe absent party. Campbell was a party to tbe suit, directly interested in tbe result, and might have stated things to bis attorney wbicb be might not have been willing to testify to on tbe witness stand. At all events, it is easy to understand why a party to tbe suit may have a stronger motive than a disinterested witness, for keeping out of tbe way for tbe purpose of postponing tbe trial or delaying tbe judgment. And it is not too rigid a rule, to require, in case of an application for a continuance on tbe ground of tbe absence of a party, who is a material witness, that tbe affidavits should disclose fully tbe precise facts, or tbe substance of tbe testimony, expected to be proven by such party. Tbe court can then determine whether such testimony is material or not. An application to postpone a trial' on account. of the absence of a party, stands upon somewhat different grounds from an application to postpone it because of tbe absence of a disinterested. witness. In tbe latter case, a party may use all gence to bave bis witness present at tbe trial, yet fail on account of some neglect of tbe witness bimself. In bis own case, be can control bis own'actions, and, if not able to be present at tbe trial, can take steps to bave bis deposition taken. If a party eañ obtain a continuance by merely making an affidavit that an absent co-defendant is a material witness, it will operate very unjustly in, many cases. Certainly it should appear that tbe application for continuance is made in entire good faitb, and not for delay ; and there is no hardship in requiring that tbe affidavit disclose tbe substance of tbe testimony expected to be given by tbe absent party.

An objection is taken to tbe sufficiency of tbe complaint, but we think it good in substance. If not sufficiently specific and clear, tbe defendant might bave made bis motion that it be made more certain. Still, by tbe strongest implication, the averments of tbe complaint show that tbe railroad ties were delivered to and received by tbe defendants.

We are of tbe opinion that there is ño error in tbe record, and that tbe judgment of tbe circuit court should be affirmed.