James v. Arbuckle

8 Iowa 272

• Court: Supreme Court of Iowa
• Decided: April 12, 1859
• Status: Published

Opinion

"Woodward, J".

It appears from the argument of the appellant, that the motion was overruled, because the affidavit did not conform to the statute, in stating the residence of the witness. The affiant states that the witness resides in the state of Illinois, but he does not yet know the county. However the question of sufficiency might be regarded, if the action were recently commenced, it is to be taken in connection with the question of diligence, and it appears that the action was brought before a justice of the peace in April, 1856, and after an appeal, in September, 1851, the defendant files this motion, and does not show the use of any diligence whatever to ascertain the residence of the witness. After the lapse of so much time, he should show, either the residence, and a reason why he has not obtained the testimony, or else the use of proper diligence. This he does not do.

But there is another ground upon which the application would seem to have been correctly overruled, and it may have been the ground upon which the court decided. The defendant had set up no defense. lie filed no answer, nor does the justice’s docket show an oral one, but on the contrary, states that there was no defense, and we should infer that defendant made default. Neither was there an answer offered in the district court, assuming, for the moment, that this might be done. In this state of the case, then, with a default — with no issue, oral or written — no defense putin — there was no object in a continuance.

The judgment of the district court is affirmed.