Dean v. Turner

Miller, J., delivered the opinion of the Court. Before the jury was sworn two exceptions were taken to the action of the Court on the defendant’s motion for a continuance. These are not subjects of appeal, but as the question of practice involved is supposed to be of some importance, we yield to the request of counsel on both sides for the expression of an opinion thereon by this Court. The defendant made an affidavit of what he expected to ⁵⁶ prove by Reid, an absent witness.

The Court then, on suggestion of the plaintiff’s counsel, caused the defendant to be examined on oath, and he was asked on what information or knowledge he believed the absent witness would prove the facts alleged in his affidavit, to which he replied he had held frequent conversations with Reid, and the latter had also made, at his request, an affidavit to be preserved in ease of death, which his counsel then had in Court, and his own affidavit had been prepared from these conversations, and the affidavit of Reid. The Court then called for the production of Reid’s affidavit, but the defendant’s counsel objected to its production, whereupon the Court decided, upon this examination of the defendant, that he must produce the affidavit, otherwise his motion for a continuance would be refused. To this ruling the defendant excepted, and still insisting on his motion, based on his own original affidavit, nevertheless, on the above decision of the Court, produced Reid’s affidavit, and then further insisted that after he had thus been examined as to the sources of his information, Reid’s affidavit should be returned to him, but the Court decided he should append it to, or incorporate it with his own affidavit, and that the latter, as it stood, was insufficient, as the facts therein stated were not the facts which the affidavit of Reid showed he would prove, but when his affidavit was made to conform to the facts stated in that of Reid, it would be sufficient. To this ruling the defendant also excepted.

He then amended his affidavit accordingly, and the parties proceeded to trial, the plaintiff submitting to the terms of admitting the truth of the contents of the amended affidavit as to the testimony that Reid would give. In all this, it is our opinion the Court not only acted strictly within its powers, but with perfect judicial propriety. The point of the objection taken by the defendant is, that as Reid’s affidavit contained matter which made for the plaintiff as well as ⁵⁷ that which made for himself, he ought not, in this way, and on this motion, to be compelled to adduce evidence for the ojrposito party. But this is altogether untenable.

Full authority is given the Court by the Code, Art. 75, sec. 87, to examine, on oath, a party making an affidavit for a continuance, both as to the materiality of the testimony and on what information or knowledge he believes the witness will prove what he alleges, and if, on such examination, the Court is satisfied of the truth of the affidavit, and that the testimony is material, then a continuance is to be granted, unless the adverse party will admit the truth of the facts, which it is so alleged the absent witness will prove. "When, upon such examination, the defendant had stated his information was desired in part from a sworn statement of the absent witness, which was then in Court, and in possession of his counsel, its production was properly demanded, and his refusal to produce it would have fully justified the Court in saying it was not satisfied of the truth of his own affidavit, and in refusing a continuance. But when it was produced, and found to contain