Dodge v. Bostwick

2 Mich. N.P. 92

• Court: Circuit Court of the 9th Circuit of Michigan
• Decided: May 15, 1871
• Status: Published

Opinion

By the Court,

Brown, J-

On a first application for a continuance, made on account of the absence of a witness, such appli cation should be supported by the affidavit of the party desiring such continuance or by his attorney, and when made by the attorney,'should show the reasons why the same is not made by the party. Such affidavit must show,

1. ■ The materiality of the testimony of the absent witness, and that the party cannot, as he is advised, safely proceed to the trial of the cause, without the testimony of such witness. The materiality of the testimony may be shown by swearing to the advice of counsel, (when the affidavit is made by the party,) to whom, it must appear, the affiant has fully and fairly stated the case and what he expects to prove by the witness.

2. The absence of the witness.

3. The endeavors which have been made to find him, or if his residence or stopping place is known, the efforts which have been made to secure his attendance at Court or to take his deposition ; the time when he is expected to return or be present, or the time when the party expects to be able to procure his deposition, concluding with the statement, substantially,that the application isnot made for delay merely, but that justice may be done.

The affidavit in support of this application is, I think, a substantial compliance with all the requirements indicated, except that it fails to show, unless by inference, that any endeavors have been made to procure the testimony of the witness. It is true that the affiant says “ it has not been possible for the defendants to procure the attendance or the deposition of the witness.” If this statement be true, a continuanes Bhould be granted, but as the affiant does not state the reason for his conclusion, the Court is unable to determine whether that conclusion is warranted. Whenever the law imposes a duty upon a person, such person will not be excused from its performance by simply saying, “It is impossible for me to do it,” but he must go further and show that he has made an honest effort and failed.

The affidavit is insufficient, but as the practice in this respect has heretofore been somewhat irregular, the defendants will be permitted to renew their application at any time during this day, without coBfe)