Klugman v. Gammell

43 Ga. 581

• Court: Supreme Court of Georgia
• Decided: July 15, 1871
• Status: Published

Opinion

Lochrane, Chief Justice.

Wre reverse the judgment of the Court below in this case, upon the ground that the Court erred in forcing the party to trial and refusing a continuance, under the facts disclosed by the record. Under section 3472, of the Code, to entitle a party to force his adversary to trial in the absence of his witness or witnesses, the admission of what the witness would swear if present, must go to the extent of admitting the facts stated to be true, and not contest the truth of such statement of facts. An admission that the witness would so swear, and not contest that he would so swear, is insufficient. The intention of this statute cannot be perverted by evasions and subtleties. The party is entitled to his witnesses, if properly subpoenaed and the law otherwise complied with, to give in evidence the facts which he may know. And if a trial is forced in his absence, the admission to invoke such compulsory trial, must go to the full extent of admitting and not contesting the truth of the facts expected to be proved by him, without equivocation, evasion or contest.

Judgment reversed.