Parks v. Council Bluffs Ins. Co.

• Decision Date: 10 June 1886
• Parties: PARKS v. COUNCIL BLUFFS INS. CO.
• Court: Iowa Supreme Court

70 Iowa 655

28 N.W. 424

PARKS

v.COUNCIL BLUFFS INS. CO.

Supreme Court of Iowa.

June 10, 1886.

Appeal from Pocahontas district court.

This is an action upon a policy of insurance against loss by fire. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals.Sapp & Pusey and L. W. Moody, for appellant.

McEwen & Garlock, W. C. Ralston, and Robinson & Milchrist, for appellee.

ROTHROCK, J.

1. The cause was tried in the court below at the January term, 1885. The answer and reply were filed on the twenty-first day of that month, and on the same day the defendant filed an application for continuance, upon the ground of the absence of a witness. Objections were filed by the plaintiff, and the continuance was denied. The defendant obtained leave to amend the motion for a continuance, and file additional affidavits. The amendment was made and additional affidavits filed on the next day. The plaintiff again objected to the motion, and the objections were sustained, and the motion overruled. The defendant excepted to the ruling, and assigns the same as error. We think the motion for continuance should have been sustained. The value of the property destroyed by fire, and for which plaintiff sought a recovery, was a material question in the case. The motion for continuance, and the affidavits in support thereof, show that the evidence of the absent witness was very material for the defendant. It was in the nature of direct admissions by the plaintiff that the property was of much less value than the damages claimed in the action. It is not claimed in the objections to the motion that the testimony of the witnesses was not material. The objections are grounded upon the want of diligence in the plaintiff in procuring the attendance of the absent witness. We think that due diligence was shown by the affidavits filed in support of the motion, and that the court, in the proper exercise of its discretion, should have sustained the motion. It is unnecessary to set out the facts in this opinion as they appear in the affidavits. To do so would serve no useful purpose, as the ruling we make thereon will not serve as a precedent. Each question of this nature must be determined upon its own facts, which are never alike in all respects.

2. This is the only question which we can determine upon this appeal. The appellee filed a motion in this court to strike the evidence from the abstract and from the transcript because it was...