Nave v. Horton

• Citation: 9 Ind. 535
• Parties: Nave and Others v. Horton
• Decision Date: 11 December 1857
• Court: Indiana Supreme Court

9 Ind. 535

Nave and Others v. Horton

Supreme Court of Indiana

December 11, 1857

From the Huntington Court of Common Pleas.

The judgment is reversed with costs. Cause remanded.

James R. Slack, for appellants.

L. P. Milligan, for appellee.

OPINION

Stuart, J.

Suit on two promissory notes by Horton against Nave and others. Judgment for the plaintiff.

Two errors are assigned--

1. The Court erred in sustaining the demurrer to the answer.

But the defendant below did not except. Hence, the record presents no question on that ruling.

2. The Court erred in refusing a continuance.

The defendants filed their affidavit, strictly conforming to the requirements of the statute as to the absent witness, and what they could prove. Upon that affidavit they moved for a continuance. The plaintiff thereupon, in open Court, admitted the facts, etc., and the Court overruled the motion for a continuance. Defendants excepted.

The admission, as set out in the bill of exceptions, is thus: "The plaintiff in open Court, agreed to admit, on the trial, all the facts expected to be proved by said witness, but denied the allegations expected to be proved by the plaintiff."

This admission is not sufficient. He should admit, in substantial compliance with the statute. The statute is, "If, thereupon, the adverse party will consent that, on the trial, the facts shall be taken as true, the trial shall not be postponed for that cause." 2 R. S. p. 109. To defeat the continuance, the agreement that the facts be taken as true should be without reserve. If there be in the affidavit irrelevant matter, it is for the jury, under the direction of the Court to say what facts are thus admitted to be true ^[1].

To understand the reservation above made, it appears that the defendants proposed to make a witness of the plaintiff; and hence the reservation as to the allegations expected to be proved by the plaintiff, who seems to have been absent.

Per Curiam.

The judgment is reversed with costs. Cause remanded.

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Notes:

^[1]See Wheeler v. State, 8 Ind. 113; McLaughlin v. State, 8 Ind. 281; Miller v. State, ante, p. 340.

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