Burris v. Myrta Court
| Decision Date | 21 April 1896 |
| Docket Number | 6514 |
| Parties | WILLIAM BURRIS v. MYRTA COURT |
| Court | Nebraska Supreme Court |
ERROR from the district court of Loup county. Tried below before THOMPSON, J.
AFFIRMED.
Clements Bros. and Coffin & Stone, for plaintiff in error:
Where defendant is not guilty of negligence or laches and has filed a sufficient affidavit for a continuance on the ground that his witnesses are absent, he should not be compelled to go to trial because the plaintiff admits that the absent witnesses if present, would testify as alleged in the affidavit, and it is error to permit the plaintiff to introduce witnesses to contradict the facts thus admitted.
A. M. Robbins, A. S. Moon, and C. I. Bragg, contra.
A former judgment in this case was reversed and the cause was remanded to the district court of Loup county for further proceedings. (Burris v. Court, 34 Neb. 187, 51 N.W. 745.) In the opinion reported, as above indicated, there was a statement of such facts as are essential to a fuller understanding of the questions hereinafter discussed. There was, on a second trial, a verdict of guilty, and the judgment was accordingly rendered which the plaintiff in error seeks to have reversed by these proceedings in error. An application for a continuance was made upon the affidavit of the plaintiff in error, in which were the statements that two material witnesses named were absent from this state, each of whom, if he testified by deposition, would swear that during the period of gestation preceding the birth of Myrta Court's child, he had had sexual intercourse with said Myrta Court. The proceedings with reference to this application are described in the record as follows: In the draft of the bill of exceptions originally submitted to counsel for the plaintiff in the district court there was no mention whatever of the above affidavit of William Burris. Upon suggestion of such counsel, however, there were interlined in the certificate of allowance of said bill, following a description of other evidence, the words, "and also introduced in evidence the affidavit of William Burris for a continuance; a certified copy of which affidavit is hereto attached." The above quotations disclose all that is to be found in the record or bill of exceptions with reference to the affidavit of Mr. Burris up to the time of instructing the jury, and upon this showing we are urged to hold that the court should have granted a continuance.
In Stoppert v. Nierle, 45 Neb. 105, 63 N.W. 382, it was said that motions for continuance are addressed to the sound discretion of the trial court, and unless it appears that there has been an abuse of such discretion, its rulings thereon will not be disturbed. The same rule was stated and enforced in Stratton v. Dole, 45 Neb. 472, 63 N.W 875, and in Keens v. Robertson, 46 Neb. 837, 65 N.W. 897. Upon the presentation of the affidavit of Mr. Burris, his adversary offered to admit that the proposed witnesses therein named would swear to the facts which by said affidavit it was alleged they would swear to if an opportunity was given to take their testimony. It is doubtless true that this substitute for the oral testimony of these witnesses would probably lack the convincing force which an oral narrative would lend to the facts stated; but these witnesses were not in this state, and therefore their personal attendance at this trial could not be compelled. At most, their testimony could, by depositions, be reduced to writing, and, preserved in that manner, it could be read to the...
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