Darne v. Margaret Broad Water

• Decision Date: 31 January 1845
• Parties: SIMON DARNE v. MARGARET BROAD WATER.
• Court: Missouri Supreme Court

9 Mo. 19

SIMON DARNE

v.MARGARET BROAD WATER.

Supreme Court of Missouri.

January Term, 1845.

APPEAL FROM CALLAWAY CIRCUIT COURT.

DAVID TODD, for Appellant. The appellant insists: 1. That an inferior court must exercise sound legal discretion in matters of continuance, and such opinion is revisable by this court. 2. That reasonable diligence was used by the party, to procure the attendance of the witness by a summons five days before trial, for a witness in the same county but eighteen miles from the place of trial. 3. That after a witness is summoned, that he should be waited upon by the party, and a promise is made to attend under the summons, is more than reasonable diligence, and of itself should entitle the party to a continuance. 1 Mo. R. 700; 3 Mo. R. 28; 3 Mo. R. 123; 6 Mo. R. 444.

LEONARD, for Appellee. 1. The refusal of the Circuit Court to allow the plaintiff a continuance of his cause, cannot be assigned for error, when the plaintiff upon such refusal voluntarily suffers a non-suit. In all the cases in this court where judgments have been reversed on account of the refusal of a continuance, there were trials, and verdicts and final judgments against the party complaining. McLane v. Harris, 1 Mo. R. 700; Riggs v. Fenton, 3 Mo. R. 28; Porter v. McCullough, 6 Mo. R. 444. 2. The affidavit does not show due diligence on the part of the plaintiff, in endeavoring to procure the attendance of his witness. Greenleaf's Ev. 363; Hammond v. Stuart, 1 Strange, 510; Mason v. Henderson, 3 Monroe R. 293.

NAPTON, J.

This was an action of assumpsit instituted in the Callaway Circuit Court, the writ being returnable to the October term, 1843, of that court. Issue was taken at that term, and the cause stood continued for the April term, 1844, and was set for trial on the 6th day of that term, which was 13th April. The case was not reached till Monday the 5th day of April, when the plaintiff moved for a continuance. The motion being overruled, the plaintiff took a non-suit, and moved to set it aside, which being overruled, the plaintiff excepted, and the only matter of error assigned in this court is the refusal of the Circuit Court to grant the continuance.

The motion for a continuance was supported by the affidavit of the plaintiff, which stated that Dr. James Saunders was a material witness; that the facts expected to be proved by him, could not be proved by any other witness; that the witness was duly summoned; that the affiant called on the witness on the day...