Klathenhoff v. Ardry

Morphy, J., delivered the opinion of the court. >phe defendant complains that the judge a quo improperly overruled his motion for a continuance; his affidavit, which is of unusual length, appears to us as full and comprehensive as could be desired. It was found, however, insufficient by the judge, who tried the cause. He thought, that, in addition to his manifold allegations, the affiant should have sworn that his witness had gone away, and that he did not know that he intended to depart, or could not prevent his departure, as required by article 465, of the Code of Practice.. We hold this article inapplicable to the present case. It obviously contemplates those cases in which a witness, being brought to the court-house by legal process, and being there in attendance, goes away without the knowledge of the party. It cannot allude to a witness who has -not been summoned at all; who, previous to the day of the trial, has temporarily left his home, and has not yet returned, although daily expected, as in this case. We know no means in the power of a party to prevent his witness from occasionally absenting himself, if such be his pleasure. We think that the affidavit was fully sufficient to entitle defendant to his continuance. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; that the case be remanded for further proceedings, ' and that the appellee pay the costs of this appeal.