Allen v. Downing

Smith, Justice,

delivered the opinion of the-Court:

We are of opinion that the facts disclosed on the application for a continuance of the cause, under the peculiar circumstances disclosed by the application, should have induced the Circuit Court to continue the cause.

If the attendance of the witness could not have been procured, on account of the illness of the son of the witness, who was stated, in the deposition of the party, to be at the point of death, then the service of a subpoena in time, would have most probably been of no utility ; — and as the presence of the witness could not reasonably be expected under such circumstances, whether served with process of subpoena or not, it is considered that the grounds disclosed, were sufficient to warrant a continuance of the cause.

If a witness served regularly with a subpoena, in such a case, should refuse to appear, and the Court would not attach such a witness for a contempt, which we consider would be the case, why should not the reason for refusing to attach, be equally as valid for a continuance of the cause for the reason of the absence of a witness thus situated.

We think this cause should have been continued; and feel bound to reverse the judgment, and remand the cause for further proceedings.

Judgment reversed.