Leckie v. Crain

delivered the opinion of the court.

The defendants pray that this case be remanded for a new trial. It appears that one of the defendants’ witnesses being in town during the trial, the sheriff was sent to bring him into court, but returned and reported that the witness was not in a situation to be sworn'. On this an attachment *434was applied for and refused. It being- after candle-light, the counsel for the defendants prayed that the case be adjourned until morning, when it was expected the witness would be in a condition to testify. This was also refused. The trial proceeded, notwithstanding a bill of exceptions was taken to the opinion of the court, refusing the adjournment. A verdict was given against the defendants, who vainly attempted to have it set aside on the ground of surprise, and from judgment rendered thereon, they have appealed.

It is contended, on the part of the appellee, that the District Court did not err, because it was not shown by affidavit, that due diligence had been used, and that the situation of the witness was not occasioned by the procurement of the party, who wanted Ms testimony. This certainly would have been required if a continuance or postponement of the trial to another term had been asked. In such a case the difference is great, from a request to adjourn a trial from candle-light until the next morning.

It appears to us the appellants used proper diligence. The witness was in town, and they took the proper means to have him brought into court. They could not have been much benefited by the delay, since the trial, most probably, / J 7 7 r J7 would have terminated before noon the next day.

It is further urged, that the witness is now dead, and the reman(^’nS ^ie case w'^ not the appellants the opportunity of availing themselves of his testimony ; but it hf . ', b , t J , will give them the means of procuring the testimony of ot^er witnesses, which may not have been at hand when they discovered the inability of the witness they had relied . , , , , . on. It appears to us upon the whole,-that the ends of jus-lice would have been better promoted by granting, than refusing the appellant’s request, ° ‘ 1

The disappointment of the appellants m being deprived of th® testimony they wanted, presented a ground for a new our opinion, ought not to have been disregarded!

It is, therefore, ordered, adjudged and decreed, that the *435judgment of [the District Court be annulled, avoided and reversed; the verdict set aside, and the case remanded for a new trial, the appellee paying the costs of the appeal.