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Boyd v. Cloud

21 Del. 478 5 Penne. 478 Court Superior Court, Kent County, Decision date 1905-10-30 English

Delivered by Lore, C. J.:

Contents

Majority

p. 478
John L. Boyd an insane person by William Boyd, his trustee by appointment of the Chancellor, vs. Mary H. Cloud.

Headnote

Register of Wills; Issue From—Trial Term—Affidavit for Continuance—Absence of Material Witness— What Affidavit Must Disclose ; Same as in Other Cases.
In an application for the continuance of the trial of an issue from the Register of Wills on the ground of the absence of a material witness, the affidavit required does not differ from that required in other cases, in regard to disclosing the name of the witness and what is proposed to be proved by him.
(October 30, 1905.)
Lore, C. J., and Grubb aud Pennewill, J. J., sitting.
Henry Ridgely and William M. Hope for plaintiff.
James H. Hughes and William M. Gooding for defendants.
Superior Court, Kent County,
October Term, 1905.
Issue from Register of Wills in and for Kent County.
Affidavit filed in regular form alleging the absence from the State of a material witness, upon which counsel for plaintiff asked for a continuance to the next term of Court.
Hughes, for defendants, contended that inasmuch as under the statute the first term was the trial term for issues from the Register of Wills whilst the second term was the trial term for other cases, therefore such issues were in the same position at the first term as other cases at the second term, and the rule of Court requiring that an affidavit for continuance at the second term should disclose the name of the witness and what is proposed to be proved by said witness should apply to issues from the Register of Wills at the first term; that the affidavit upon which the motion for continuance was made in the above case did not disclose the name of the witness or what was proposed to be proved by him and therefore the
p. 479
affidavit was defective on that ground and the motion should be refused.

—There is no distinction between issues and other cases in that regard. This has been regularly placed upon the trial list, under the rules of Court requiring that cases at issue twenty days before the convening of the Court shall be placed upon the list, and we think the affidavit discloses all that is necessary. Let the case be continued until the April Term.