Sharpless v. Sevier and Harrison

1 Tenn. 117

Opinion

The cause stands upon the same footing as if it were an application at the first term after issue joined. The cause has been continued by consent, either expressed or implied for a general continuance, amounts to implied consent. Therefore, the defendants have no cause to complain of the length of time this cause has been depending, supposing this the first application for a continuance, according to our practice it would be granted and consequently the nonsuit ought to be set aside. The cause was continued at the last terms, as it had uniform ly been before ; since which, the affidavit shews that exertions have been used to procure certain papers : that they were procured at so late a period, as scarcely to afford time to make the necessary preparation, at least it seems reasonable to think so.

The affidavit also states the papers to be material. It is the duty of all judicial tribunals to make an end of disputes by a fair trial, if it can be done consistently with the rules of the court—no trial in this case has been had, therefore let the non suit be set aside.