Killmer v. Crary — 13 Johns. 228

Majority

p. 228

Killmer against Crary.

Headnote

The admission of the persoSrta^the-; for tLe purpose second^'durnl count of the rial rests in thetíHthedjusücé^ appear that thát be^nabused, hfs iot be reversed!

IN ERROR* on certiorari to a justice’s court.

The plaintiff in error, who was the defendant in the court be.low, having* ©n the return of the'summons, obtained an adjournmeht, appeared* on the day to which the causé,was adjourned, attorney, and requested another adjournment on account of the absence of material, witnesses. The application was opposed' ' ». % the plaintiff below, and oné of the grounds of opposition was, t^t attorney OOuld not make the affidavit that the witnesses were material; upon which the attorney stated that'the defendánt was sick, and could not attend. The justice examined a witness as1 to that fact, and concluded, from what the .witness stated, that the defendant could have attended, add refused the affidavit, of the attorney. The parties then, proceeded £0 trial* ahd' a verdict was. found for the plaintiff.below,the, deféndant in error.

The only'question in this case is* whether the justice ought to have received the affidavit of the attorney, as to the absence and materiality of the Witnesses. This Was, .in'; Some manner,. á; matter resting in the spund discretion of the justice ; and .from the evidence returned, as to the inability of the defendant to attend the court, wq oannót say that there: was -such án abuse of this discretion as to'justify the setting aside the -judgment, it is clear ■ that .the-defendant might have attended court; The cause of his inability alleged, was a complaint in his face, arising, as the, witness at first supposed, from intoxication ; afterwards he thought it was occasioned by poison: he had but a day or two before walked ten miles. As the first adjournment was • at the request of the defendant* and, for any thing, that appears, for as long a time as he wanted in order to prepare for the trial;

p. 229

and as the dispensing -with the affidavit of the.party himself was a question proper for the justice, and resting in sound, discretion, we think the judgment must be affirmed.

Judgment affirmed.