Kramer v. Weigand

• Decision Date: 24 January 1911
• Docket Number: 16,273
• Citation: 129 N.W. 543,88 Neb. 392
• Parties: CATHERINE KRAMER, APPELLEE, v. JOHN A. WEIGAND, APPELLANT
• Court: Nebraska Supreme Court

129 N.W. 543

88 Neb. 392

CATHERINE KRAMER, APPELLEE, v. JOHN A. WEIGAND, APPELLANT

No. 16,273

Supreme Court of Nebraska

January 24, 1911

APPEAL from the district court for Boone county: JAMES R. HANNA JUDGE. Affirmed.

AFFIRMED.

H. C Vail, for appellant.

W. R Patrick, A. E. Garten and O. M. Needham, contra.

OPINION

FAWCETT, J.

On May 22, 1908, plaintiff filed a complaint before the county judge of Boone county, charging that she was an unmarried woman, that she was then pregnant with a bastard child, and that defendant was the father of such child. Defendant was held to the district court, where, upon trial duly had, judgment was rendered in favor of plaintiff, and defendant appeals.

Five errors are assigned for a reversal, which we will consider in the order in which they appear in defendant's brief.

1. That the court erred in overruling defendant's application for a continuance. From the statements made in defendant's brief, it appears that the case stood for trial at 9 o'clock A. M. December 16. December 7 defendant filed in the office of the clerk a precipe for a subpoena for witnesses, one of whom was Albert Umlauf. The subpoena was returned December 9, duly served upon the witness named, and with the statement that no demand was made by Umlauf for witness fees. It appears from the statement of counsel for defendant in his brief that when the case was called for trial, and before the voir dire examination of the jurors commenced, he made a statement to the court that a subpoena had been duly served upon the witness Umlauf, that a return of service had been made, and "that on the evening of the 15th day of December defendant sent his hired man to the place where the witness Umlauf was working in order to bring Umlauf to the home of defendant so he could come with defendant to Albion December 16 to be a witness in this case. That Umlauf stated to defendant's hired man that he would finish corn husking and then come over to defendant's house and go with him to Albion December 16. That the witness Umlauf did not appear at the residence of defendant as he promised, and did not make his appearance in court at the opening of the trial of this case. That defendant had been informed that the party where Umlauf was working had stated that Umlauf had left their place the evening of December 15, and that was all defendant was able to learn as to the whereabouts of the said Umlauf. That defendant had made his arrangements to go to trial at that time, and that he was ready to go to trial, provided he could obtain the presence of the witness Umlauf, who was a material witness for the defense. That defendant would insist upon the presence of the witness before proceeding to place his defense before the jury, and that, if the witness failed to appear before the time the plaintiff had introduced her evidence, the defendant would make a showing for a continuance on account of the absence of the witness." There is no showing as to what the court said when counsel made this statement, nor is there any intimation in the record that the court advised him that the trial might proceed subject to his right to make such a showing after plaintiff had rested, in the event that the witness Umlauf did not appear. After the jury had been selected, defendant filed an affidavit stating the facts of the service of the subpoena and the nonappearance of Umlauf, in which affidavit he stated "that said witness is not in attendance at court, and affiant on inquiry has been unable to learn the present whereabouts of the said witness," whereupon the court issued an attachment, which proved unavailing, as the witness was not found. On the next day, December 17, after plaintiff had rested, defendant moved for a continuance of the case and filed the affidavit of defendant in support thereof. The affidavit recites the facts substantially as above set out, and further states that the last information affiant had been able to procure as to the whereabouts of the witness was from persons who had seen the witness in Petersburg on the evening of December 15 at about 8 o'clock that the witness Umlauf was a material witness, and then set out the facts which he stated Umlauf would, if present, testify to, which facts, it must be conceded, constituted material testimony. The affidavit further stated: "Affiant believes that the said Albert Umlauf has temporarily left Petersburg, Nebraska, to avoid the attendance as a witness in this case. Affiant further believes if the court will continue this case that he will be able to find the said Albert Umlauf, and take his testimony in the case." The court overruled the motion for a continuance and the trial proceeded. The rule is well settled than "an order denying a continuance of a cause will not be reversed except for an abuse of discretion." Storz v. Finklestein, 48 Neb. 27, 66 N.W. 1020; Taylor v. State, 86 Neb. 795, 126 N.W. 752. In the face of this rule defendant's contention must fail. We cannot say that under the facts and circumstances shown the court abused its discretion in denying the continuance. Defendant knew when the case was called for trial all the facts within his knowledge at the time he made his application for a continuance after plaintiff had rested. He then knew, as shown by the statement of his counsel, that Umlauf had not kept his promise to go to defendant's house on the evening of the 15th and accompany defendant to the county seat on the morning of the 16th. He had also then been advised that the gentleman for whom Umlauf had been working had stated that Umlauf had left his place the evening of the 15th for parts unknown. With that knowledge then in his possession, if he did not desire to run the risk of a trial without the presence of Umlauf, he should at once have made his application for a continuance; and this is especially true when no assurance was given him by the court that in proceeding with the trial he did not waive his right to subsequently make such application. He had no right to consume the time of the court and put plaintiff to the trouble and expense of proceeding with the trial of her case upon the mere hope, which his own statement shows was unfounded, that the witness would appear in time to serve his purpose. We think the true rule should be, and is, that it is the duty of a party when surprised by the nonappearance of a material witness, who has been duly subpoenaed, under circumstances which are known by him when the case is called for trial and which give him no reason to expect such witness intends to appear, to at once apply to the court for a postponement of the trial or a continuance of the case; that, if he fails so to do and enters upon the trial, he does so at his...