Scogin v. Hudspeth

• Decision Date: 31 December 1832
• Citation: 3 Mo. 123
• Parties: SCOGIN v. HUDSPETH.
• Court: Missouri Supreme Court

3 Mo. 123

SCOGIN

v.HUDSPETH.

Supreme Court of Missouri.

December Term, 1832.

APPEAL FROM THE JACKSON CIRCUIT COURT.

WASH, J.

This was an action commenced in the Jackson Circuit Court by petition and summons by Hudspeth, the defendant in error, against Scogin, the plaintiff in error. The summons was served on the 21st of April, 1832, and the return term of the court began on the 19th of June thereafter. The defendant pleaded in set-off amongst other things, “that the plaintiff was indebted to him” in the further sum of sixty dollars, for the rent of his, the said defendant's, farm by parol lease. The defendant also moved the court for a continuance of the cause, on the following affidavit: “The defendant R. R. Scogin makes oath and says, that he cannot go safely into trial at this term of the court, on the account of the absence of John S. Hunter, J. Dallerhide, and ______ ______, material witnesses who reside in the State of Alabama, by whom he expects to prove that a part of the matters offered in set-off, are due to him from said plaintiff, that he cannot prove the same facts by any other persons; that he has not had time to go their evidence at this term of the court; and that he has a reasonable expectation to procure their testimony by the next term of this court.” The Circuit Court overruled the motion for a continuance. The defendant then offered to prove, as a set-off under his plea, “that he had rented to the plaintiff a farm made on public land, that is, on land belonging to the general government, for thirty barrels of corn, which the witness said he presumed was to be paid at the next corn gathering time.” The testimony was objected to by the plaintiff's counsel, and excluded by the court. The defendant in the Circuit Court excepted to the opinion of the court, in refusing the continuance, and in rejecting the evidence offered in support of the plea of set-off. The plaintiff had judgment, to reverse which the defendant Scogin has appealed to this court, and assigns for error. First. The refusal of the continuance; and Second. The rejection of the evidence offered.

A suit instituted under the petition and summons act, is triable of right at the return term, unless for good cause shown.

Motions for continuance are addressed to the sound discretion of the Circuit Court, and this court must see that its discretion has been exercised unsoundly, before it will reverse a judgment for that cause. For aught that appears in the record, the defendant by proper diligence might have procured the testimony to the return term of the court; and...