Gallagher v. Gallagher — 20 Del. 519

Majority

p. 519

Andrew Gallagher, Administrator of Andrew J. Gallagher, deceased, vs. The Diamond State Steel Company.

Headnote

Continuance—Absence of Witness—Affidavit must Disclose Name of Witness ; Also that Effort had been made to Procure his Attendance—Practice.

In an application for the continuance of a case at the first term at which the case appears upon the trial list, upon the ground of the absence from the State of a material witness, the affidavit failed to disclose the name of the absent witness, and also that any effort was made before the case was calendered for trial to procure the attendance of the witness. Held insufficient.

(February 2, 1904.)

Lore, C. J., and Pennewill and Boyce, J. J., sitting.

J. Harvey Whiteman for plaintiff.

Saulsbury, Ponder and Curtis for defendant.

Superior Court, New Castle County,

February Term, 1904.

Action on the case

(No. 45,

November Term, 1903).

Application for continuance at the first term by defendant’s counsel upon an affidavit alleging the following facts:

“ That this is the first time the said case has been upon the trial list.

“ That there is a witness material to the defense in the trial of this case who now resides outside the State of Delaware.

“That the said defendant company is unable to procure the attendance of the said witness at the present term of this Court.

“ That the said defendant cannot safely go to trial without the

p. 520

evidence of the said witness and that the said defendant company verily believes that it can procure the attendance of said witness at the next term of this court.”

Whiteman, for plaintiff, objected to the sufficiency of the affidavit on two grounds: First, that it did not disclose the name of the absent witness; second, that it did not disclose that any effort was made before the case was calendered for trial to procure the attendance of the witness.

We hold the affidavit to be insufficient on both of the above grounds.