Saastad v. Okeson

• Decision Date: 31 December 1902
• Citation: 16 S.D. 377,92 N.W. 1072
• Parties: S. O. SAASTAD and L. O. LUND, Plaintiffs and respondents, v. GEORGE OKESON, Defendant and appellant.
• Court: South Dakota Supreme Court

16 S.D. 377

92 N.W. 1072

S. O. SAASTAD and L. O. LUND, Plaintiffs and respondents,

v.

GEORGE OKESON, Defendant and appellant.South Dakota Supreme Court Appeal from Circuit Court, Roberts County, SDHon. A. W. Campbell, Judge Affirmed T. M. Grant, Howard Babcock Attorneys for appellant.A. T. Hanson, Ivan W. Goodner Attorneys for respondents.Opinion filed December 31, 1902

FULLER, J.

For the purpose of the trial, and pursuant to a stipulation of counsel, and the circuit court consolidated the above entitled actions for damages occasioned by the negligence of defendant in setting out a prairie fire by which the property of plaintiffs was destroyed.The respective verdicts upon which a judgment for each plaintiff was entered are abundantly sustained by competent testimony, and no available error occurred at the trial; nor is any urged in the brief of counsel for appellant.The only claim meriting any attention is that a continuance should have been granted upon the application of the defendant, from which it appears that he was too ill to be present at the trial beyond a statement of purported facts to which the defendant would testify if present at the trial, there is nothing in the showing for a continuance to indicate any special necessity for his presence; and it was expressly admitted by plaintiff that, if present, he would testify as set forth in the affidavit for a continuance.Under the common-law rule, followed by federal courts and several of the states, no error is assignable on account of the refusal to continue a case, either civil or criminal.Cox v. Hart, 12 SCt 962, 36 LEd 741;Electric Co. v. Dick, 3 CCA 149, 52 Fed. 379;Insurance Co. v. Hodgson, 6 Cranch, 206, 3 LEd 200;Baxter v. People, 3 Ill. 368;Sloan v. Guice, 77 Ala. 394;White v. Town of Portland, 63 Conn. 19. 26 Atl. 342;Com. v. Drake, 124 Mass. 21;Banks v. Manufacturing Co., 108 N. C. 282, 12 S.E. 741;Collins v. Smith, 16 Vt. 10.In other jurisdictions, where the application for a continuance is based upon the unavoidable absence of a witness or party to the suit whose testimony is essential, a denial thereof cannot be reviewed if the opposing counsel admits that the absent party or witness would, if present, testify to the facts stated in the affidavit.Pate v. Tait, 72 Ind. 450;Diebold v. Powell, 32 Ohio St. 173;People v. Jackson, 111 NY 362, 19 N.E. 54.We consider the matter as being within the discretion of the trial court, whose...