Fernandez v. Hartford Fire Insurance

12 P.R. Fed. 434

Opinion

OdiaN, Judge,

delivered the following opinion':'

On this 27th day of May, 1922, there has been argued and submitted a motion filed by counsel for the defendant for a postponement of the trial which had already been set for May, 31, 1922, by consent of all parties, and the motion is based upon the following grounds:

1. That the plaintiff and defendant are at the present time considering a settlement and compromise of this case, and this defendant believes that a settlement will be finally made. It is clear that this ground is not basis for a postponement of the time of trial. If it be a fact that the defendant is considering a settlement and compromise of this case and desires to avoid a trial on May 31, the defendant still has four days in which to complete the proposed settlement.

2. Another ground is that the defendant subpoenaed one Cantero as a witness and the defendant lias just been informed that Cantero left for Spain a few days ago. In connection with this second ground of the motion it is necessary to consider the third ground, which is that defendant cannot go to trial without the said witness Cantero, and that if he is forced to do so the defendant will be deprived of this defense.

The court will pass upon the second ground and the third ground as one. The decisions are almost uniform that where the defendant seeks a continuance of a trial upon the ground that a certain party is needed as a witness and that a subpoena has been served upon that witness and that the witness disregarded the subpoena and left the country, it is necessary that the defendant should set forth specifically the facts material to his defense which he expects to prove by this witness, and lie must also satisfy the court that it is impossible for him to prove these elements of his defense by means of other witnesses. It is always possible that by setting forth the facts which the defendant expects to prove by the absent witness, the plaintiff may ■admit tbe same, but it is impossible for tlie plaintiff to say whether or not-he would admit such facts unless they are sot forth.

For these reasons, the court is clearly of the opinion that the present motion for a postponement is not well founded, and the same is therefore denied.. To this ruling counsel fox defendant excepts.

It is so ordered.