Morgan v. Raymond

Citations

• 38 Ill. 448

Syllabus

<p>1. Continuance—on a second application. Though a motion at a previous term, to continue a cause, on a sufficient affidavit he denied, and the cause goes over, for other reasons, without a trial at that term, still, at a subsequent term, the party who sought such continuance has a right to present another affidavit for a continuance, and if it shows sufficient facts, and diligence, the court has no discretion, but must grant the application.</p> <p>2. Same—what constitutes diligence. The second application was made at the December term, 1864, and to show diligence, the affidavit states that towards the latter part of the October previous, the party, for the first time, learned he could prove certain material facts by two witnesses who resided in Wisconsin. That immediately upon learning that he could prove such facts by them, he sued out a dedimus for their examination, and a commissioner was appointed in Wisconsin to take the deposition, and the commission, with interrogatories and cross-interrogatories, were duly forwarded to the commissioner; that after waiting a proper time for the return of the commission, and not being returned, he sent a messenger to ascertain the cause, and then, for the first time, learned that the commissioner had gone south before the commission reached him, and would be gone six weeks, and that one of the witnesses had also left; that there was only a weekly mail between the residence of the witness and commissioner and Chicago where the suit was pending. This was held to be sufficient diligence to entitle the party to a continuance.</p>