Wilson v. Kochnlein.

• Decision Date: 31 July 1865
• Citation: 1 W.Va. 145
• Court: West Virginia Supreme Court
• Parties: Wilson v. Kochnlein.

1 W.Va. 145

Wilson

v.Kochnlein.

Supreme Court of Appeals of West Virginia.

July Term, 1865.

1.The discretion of the court in granting or refusing a continuance, whilst it is a legal discretion, is to be exercised more rigidly after long delays, or several continuances granted a party, than on the first application.

2.On a motion for a continuance it is necessary for the affidavit to state, not only the materiality of the witness, on account of whose absence, or the absence of his testimony, a continuance is sought, but that the party can not safely go to trial by reason of that absence.

3.A case in which a motion for a continuance was properly refused, in consequence of the negligence of the defendant in preparing for trial.

This was an action of trespass brought by the defendant in error, John M. Kochnlein, in the circuit court of Ohio county, against the plaintiff in error, Andrew Wilson, for an assault and battery, at the January rules, 1862. There were five continuances in the case, before the trial, which took place at the May term, 1864. Three of the continuances wrere had on the motion of the defendant below, Wilson, one generally, and no order appeared in the case, May term, 1863. When the case was called for trial at the May term, 1864, the defendant moved for a continuance on the ground of the absence of a witness, one Edward Sheehan. On beingsworn he stated he had conversed with the witness and believed him to be material to his defence; that when he last saw him, five or six weeks previously, the witness informed him that he was then going to St. Joseph in Missouri for a permanent residence there, but that he expected to return to Wheeling, Ohio county, for his family, where they then resided; that he spoke to the witness about taking his deposition in this case, and it was understood his deposition wrould be taken when he returned for his family, and that he thought the last time he saw the witness in Wheeling was about the time or shortly after the case was continued at the preceding term of the court.

The plaintiff resisted the motion for a continuance, and introduced one John Donlon who proved that he was well acquainted with Sheehan, and knew that he had been in Missouri ever since the preceding summer or fall, and only made occasional visits to Wheeling lasting a few days or a week, and that the last time he saw Sheehan in Wheeling was in January, 1864. He also introduced one William H. Russell, who proved that his brother-in-law, Robert Woods, was a partner in business with Sheehan in St. Joseph; that Sheehan left Wheeling in the fall of 1863, and had been doing business with Woods ever since in St. Joseph; that the last time he saw Sheehan in Wheeling was in January, 1864, and that he had not been there since that time, and that Woods came to Wheeling in February, 1864, and made preparations for the removal of the family of Sheehan to St. Joseph, which took place about the first of April following.

The plaintiff also proved by defendant Wilson, on a re-examination, that nothing was said in his conversation with the witness about the time when the suit would be tried, and that he did not know of Sheehan having been at Wheeling more than once during the year 1864.

Plaintiff also produced the defendant's subpoena for witnesses to the term, which was dated April 20th, and included Sheehan among other witnesses, which was returned "not found" as to Sheehan. A similar return was on the subpcenas for the two terms preceding. The court overruled the motion for a continuance and the defendant excepted.

The jury returned a verdict for one thousand five hundred dollars damages.

The defendant obtained a supersedeas from this court, alleging in his petition that the defendant had shown reasonable and proper diligence in obtaining the testimony of witnesses; that the testimony of the witness was conceded to be material; and that the motion was made in good faith and not for the mere purpose of delay.

James S. Wheat for the plaintiff in error.

He argued that the court ought to exercise a sound and legal discretion in motions for continuance, and cited the following authorities in support of the position: 4 H. & M. 157, 159, 180; 3 Munf., 547; 6 Munf., 390; 1 Leigh, 1; 12 Leigh, 474; 1 Rob., 591.

He further argued that the nature and circumstances of each case should be matter for the consideration of court in determining upon the motion, and that the state of the country and the distance of the residence of the witness from the place of trial and the character of the action, which rendered the personal attendance of the witness a matter of great importance, in the present case, rendered it one in which the interposition of the court was necessary to prevent injustice.

A. B. Caldwell for the defendant in error.

The only question for the consideration of this court, is, was the defendant entitled to a continuance, on the ground set forth in his bill of exceptions? Ross vs. Norwell 3, Munf. 170.

It is conceded to be the general rule as established by the decisions in this State, that a party is entitled to a continuance at his costs, if his witness fail to appear at the trial, and such party show that a subpoena has been returned executed, or that a subpoena was delivered to the proper officer of the county in which the witness resides, a reasonable time before the commencement of the term, and shall swear that the witness is material, and that he cannot go safely to trial, without his testimony.

But, to above general rule, there is one exception, repeatedly recognized, by our court of appeals, that, even though an absent witness be duly subpcened, and his materiality sworn to, yet if there is ground to believe, that the party is influenced by a desire to delay the trial, and considerable delay has already taken place, the court may refuse any further continuance. Milstead vs. Redman, 3 Munf. 219. There, Redman sued Milstead, for breach of a promise to marry. The defendant obtained a continuance at November term, 1805; at March term, 1806, there was a verdict for plaintiif and a new trial granted; at May term, 1806, the cause was continued for defendant; and at August term following, he again moved for a continuance, because of the absence of two material Witnesses, who had acknowledged service of the subpoena, and the husband of one of whom stated she was too ill to attend court. The motion to continue was overruled, and this judgment was affirmed by the court of appeals.

The case of Milstead against Redman, was a much stronger one, for a continuance, than the cause now under consideration. In that case, there had been but two continuances granted to the defendant, while in this case, there had been three successive continuances, at the cost of the defendant. In that case, two material witnesses, who had acknowledged service of the subpoena, and one of whom, was proven to be too ill to attend court, were both absent; whereas in this case, but one witness (Sheehan) was absent, and he not served with a subpoena, and not a citizen of the State, when the subpoena issued, or at the time of the trial.

See also, in support of above exception, the case of Brooks vs. Calloway, 12 Leigh, 474, in which judge Allen in delivering the opinion of the court, cites approvingly, the above case of Milstectd vs. Redman. In said case of Brooks vs. (\dloway there had been, as in this case, three previous continuances, at the cost of the defendant, when the fourth application for a continuance was overruled, and the court of appeals held, that he was properly ruled into trial. See also, the opinion of judge Daniel in Spangier vs. Dacy, 15 Gratt. 884-5, in which he says, "when we take into consideration the further fact, that the plaintiff in error has already been indulged with two continuances of the cause, the fair conclusion is, that if he has lost the benefit of any important fact, on the trial of his case, such loss is due, not to any injustice or harshness in the ruling of the court, but to his own cudpedde negligence."

Thus far, we have treated this case, as if the witness, Edward Sheehan, had been duly summoned to the May term, 1864, whereas the fact is, as the bill of exceptions abundantly proves, that said Sheehan had permanently removed from this State to St. Joseph, Missouri, in January, 1864, and all his family had followed Mm there some three...