Evans v. Pond
| Decision Date | 31 March 1860 |
| Citation | 30 Mo. 235 |
| Parties | EVANS et al., Respondents, v. POND, Appellant. |
| Court | Missouri Supreme Court |
1. A cause was set for trial on the 6th of May, 1858; on the 5th of May the defendant issued subpœnas for witnesses; these subpœnas were returned by the sheriff “not found;” on the 6th the case was called for trial, but was not tried; on the 7th it was again called, whereupon the defendant filed a motion for a continuance on the ground of the absence of material witnesses, accompanying said motion with an affidavit in which he set forth that when he discovered on the 6th day of May that the subpœnas had been returned “not found,” he searched for said witnesses and used his best endeavors to find them and procure their attendance. The court overruled the motion. Held, that the motion was properly overruled.
Appeal from St. Louis Circuit Court.
Krum & Harding, for appellant.
I. The court improperly overruled the motion. It appeared from the affidavit that the absent witnesses resided in the city of St. Louis, and the subpœna shows that the sheriff had ample time to search for them. He returned them “not found.” The inference from the return is that the sheriff knew where to find said witnesses ordinarily; that he searched diligently for them, and that they were not in reach of process. Defendant used his own personal exertions to discover them, and bring them into court. Due diligence was used. The refusal to grant a continuance when good ground therefor is shown is error. (6 Mo. 444.) A palpable case of diligence must, it is true, be shown. (8 Mo. 606.) In this city, one day has, until recently, always been considered sufficient time for service of a subpœna upon a resident witness. Two days' time is now sufficient. Here we show the sheriff's efforts one day, and the defendant's on the next.
Lackland, Cline and Jamison, for respondents.
I. The defendant did not use due and proper diligence in obtaining the attendance of witnesses. The granting of the continuance upon the application was discretionary. This court will not interfere, unless there is an abuse of a sound discretion. (See 8 Mo. 606, 334; 18 Mo. 477, 47, 445; 21 Mo. 423; 1 Mo. 780; 3 Mo. 123.)EWING, Judge, delivered the opinion of the court.
The only question in the case is the ruling of the circuit court, in refusing a continuance.
It appears from the record that the cause was set for trial on the 6th of May, 1858; (the suit being on a promissory note;) that it was called for trial on that day,...
To continue reading
Request your trial
- Brady v. State
-
Keltner v. Threlkel
...court found, as a matter of fact, that the application was not made in good faith, but for the sole purpose of preventing a trial. Evans v. Pond, 30 Mo. 235; Schultz Moon, 33 Mo.App. 338; Gibson v. Ins. Co., 181 Mo.App. 302; Sec. 2457, R. S. 1919. (2) Under the law applicable to changes of ......
-
Kenney v. Hannibal & St. Joseph R.R. Co.
...a continuance. Defendant did not show the diligence the law requires. Wood v. Railroad Co., 58 Mo. 109; State v. Burns, 54 Mo. 274; Evans v. Pond, 30 Mo. 235; Scogin v. Hudopeth, 3 Mo. 123. The granting of continuances rests largely in the discretion of the trial court, and every intendment......
-
Barnum v. Adams
...made the same day, while the application was made May 26. (8 Mo. 606, 334; 18 Mo. 477, 47, 455; 21 Mo. 423; 1 Mo. 780; 3 Mo. 123; 30 Mo. 235.) An affidavit for a continuance for an absent witness made on a prior day is insufficient. (Parker v. McKelvains, 17 Texas, 157; Lewis v. Williams, 1......