Vanblaricum v. Ward

Vanblaricum v. Ward. If the continuance of a'cause be refused, when the party is legally entitled to it, the .judgment will be reversed. APPEAL from the Dearborn Circuit Court. — Trespass against Vanblaricum for an assault and battery. Plea, son assault demesne. Replication, de injuria. The defendant below moved for a continuance of the cause upon an affidavit of the absence of witnesses, &e. The motion was overruled, and the proceedings thereon made a part of the record by a bill of exceptions. — ■ Verdict and judgment for the plaintiff in the Circuit Court. The refusal of the Court to grant the continuance, was the only error assigned. Lane, for the appellant. [MAJORITY — Scott, J. Per Curiam,] Scott, J. On the subject of this case there have been various decisions. We consider a motion for a continuance, as an application to the sound, legal discretion of the Court, over which, if improperly used, a Superior Court will exercise a control. The rules and practice of Courts are now so well settled, that we are not left to vague uncertainty in this, more than in other principles of common law. There are many cases in which a party, without any laches on his part, may, by the unexpected absence of a witness, be placed in such a situation, that, without a continuance, he cannot possibly obtain his right; and to refuse a continuance in such cases, is tantamount to a refusal of justice. The case cited, 6 Cranch, 218 , places a motion for a-continuance on the same footing with a motion for a new trial; and there appears to be no good reason for a distinction. It has been decided by (his Court, that a refusal to grant a new trial may be assigned for error . A. refusal to grant a continuance maybe assigned for error also. The affidavit in this case is substantially good, and the Court erred in refusing a continuance. Per Curiam, The judgment is reversed, and the proceedings up to the motion for a continuance are set aside, with costs. Cause remanded for further proceedings, not inconsistent with this opinion. The M. I. Co. of Alexandria v. Hodgson. According to that case, the refusal to allow a plea to be amended, or a new plea to be filed, or to grant a new trial, or to continue a cause, cannot be assigned as error. In Fa., the refusal to grant a continuance, may be assigned for error. Higginbotham v. Chamberlayne, 4 Munf. 547. So also in Ky., Smith v. Snoddy, 2 Marsh. 382. — Davis v. Gray, 3 Littell, 451. Goldsby v. Robertson, ante, p. 21.