Barnum v. Adams

• Decision Date: 31 March 1862
• Citation: 31 Mo. 532
• Parties: THERON BARNUM et al., Respondents, v. WASHINGTON F. ADAMS, Appellant.
• Court: Missouri Supreme Court

31 Mo. 532

THERON BARNUM et al., Respondents,

v.WASHINGTON F. ADAMS, Appellant.

Supreme Court of Missouri.

March Term, 1862.

1. An affidavit for the continuance of a cause on account of the absence of a witness, which stated that the subpœna was issued on the 5th May, and was returned “served,” the cause being set for the 19th May, and that an attachment was taken at the calling of the cause on the 23d May, which had not been executed on the 26th, at the recalling of the case, showed due diligence, and it was error to overrule the motion based thereupon.

Appeal from St. Louis Circuit Court.

This cause was set for trial on May 19th, 1859, and was called for trial on 23d May, at which time defendant prayed for an attachment against an absent witness who had been duly served with a subpoena, issued May 5, 1859. The attachment was granted, but the witness at the calling of the cause again on the 26th May was returned “not found;” when the defendant made application for a continuance based upon the following affidavit:

“Washington F. Adams, being duly sworn, says that he is the defendant in this action, that he is not prepared for trial, and moves for a continuance of the cause grounded on the absence of testimony; that the name of the absent witness is George W. Putnam--that his occupation is that of a manufacturer of castor oil and lard oil and a dealer in real estate, and his residence is in the city of St. Louis and said county of St. Louis--whose testimony is wanted; that his (said Putnam's) testimony is material in the cause; that no other witness is in attendance, or known to him, whose testimony could have been procured in time, upon which the party (this affiant) can safely rely to prove the particular facts the absent witness is expected to prove; that the applicant (this affiant) believes he can not safely go to trial without the testimony of the absent witness; that he is not absent by the consent, connivance or procurement of the party applicant (this affiant); that on or about the 5th day of May inst., 1859, this affiant caused a subpoena to be issued out of and under the seal of this court, to be served on the said George W. Putnam, and the same is duly returned executed on that day; that, on the 23d day of May, inst., said witness was called, but failed to appear in answer to said subpoena, and deponent caused an attachment to be issued for said witness, which has been returned by the sheriff, that said witness can not be found, and that said cause is a return case, &c. Sworn to this 23d May,” &c.

The application was overruled. On the 26th May trial was had, and verdict and judgment rendered for the plaintiffs.

The defendant filed his motion for a new trial for the reasons that the continuance was refused, and that the jury were not sworn in the cause.

The court set aside the verdict because the jury had not been sworn, and ordered the cause to be again set for the 31st May, and, the case being called on June 1st, the defendant again applied for a continuance, upon affidavit, which was overruled and verdict and judgment entered for the plaintiffs.

Defendant filed his motion for a new trial, which was overruled.

C. D. Colman, for appellant.

I. The court erred in refusing to continue the cause on the affidavit of defendant--1st, the affidavit was in accordance with the rule of court, and the statutes of 1855, p. 1260, § 17; 2d, the affidavit...