Kilmer v. St. Louis

• Decision Date: 09 July 1887
• Court: Kansas Supreme Court
• Parties: C. H. KILMER, as Administrator of the estate of Minerva Wilkinson, deceased, v. THE ST. LOUIS, FORT SCOTT & WICHITA RAILROAD COMPANY

14 P. 465

37 Kan. 84

C. H. KILMER, as Administrator of the estate of Minerva Wilkinson, deceased, v. THE ST. LOUIS, FORT SCOTT & WICHITA RAILROAD COMPANY

Supreme Court of Kansas

July 9, 1887

Error from Greenwood District Court.

THE opinion states the case. Trial at the December Term, 1884 and judgment for the defendant Railroad Company. The plaintiff brings the case here.

Judgment affirmed.

T. L Davis, for plaintiff in error.

Richards & Benton, for defendant in error.

HOLT C. All the Justices concurring.

OPINION

HOLT, C.:

There is but a single question for consideration in this case: Whether the district court erred in overruling the motion for a continuance, made by plaintiff in error. The facts in the case are briefly these: On the 10th day of September, 1884, Minerva Wilkinson saved the life of her widowed sister's child, two years of age, snatching it from the track of defendant's railroad in front of one of its locomotives. As she caught the child, she was struck by the engine in the left temple and instantly killed. She left her husband and five children. An administrator of her estate was appointed, not her husband; action was brought and the case was at issue for the first time at the December term, 1884, of the district court of Greenwood county. It met in that county on the 7th day of December; this cause was tried on the 17th of the same month. The affidavit for a continuance states facts that would have been material and relevant on the trial of the cause; the only question is, whether the plaintiff used sufficient diligence in attempting to procure the testimony of the absent witness, William Wilkinson, the husband of Minerva Wilkinson.

Ordinarily the question of sustaining or overruling a motion for a continuance lies largely in the discretion of the trial court, and when it sustains the motion for a continuance, its decision, unless it is manifest that there is an abuse of discretion, will be upheld. This rule does not have the same force when the motion is overruled, and the parties are compelled to go to trial at once; yet it is a fact then, that the trial judge, knowing all the circumstances surrounding a case, can properly exercise a wide discretion, and is often justified in compelling the parties to immediately proceed to trial.

In his affidavit plaintiff states that the absent witness was the husband of the woman killed; that for three years he had been living four miles west of Eureka, the county seat, and continued to reside at said place after the death of his wife up to about the last of November, 1884, and up to within nine days of the beginning of the then present term of court; that said witness had frequently promised the plaintiff that he would certainly be present at the trial to testify as a witness for the plaintiff, and that nothing but sickness or death would prevent him from doing so; that plaintiff knew nothing of said witness's (Wilkinson's) intention to leave, did not know that he had gone until the fifth day of December, and did not know where he was; that he made diligent inquiry and every effort to find out the whereabouts of...