Moore v. Goelitz, 27 Ill. 18 (1861)

Nov. 1861 · Illinois Supreme Court

27 Ill. 18

Ninian S. Moore, Plaintiff in Error, v. George Goelitz, Defendant in Error.

ERROR TO MONROE.

A continuance will not be granted because a witness has said that he would be present at the trial and had been subpoenaed by the opposite party. The party desiring the testimony of the witness, should secure his presence at the trial.

This was an action of trespass by Goelitz againt Moore for assault and battery, tried at the Monroe Circuit Court. Pleas of the general issue and son assault demesne were filed, and issue joined. At the October term, 1859, judgment was rendered in favor of Goelitz for $600 and costs. The case is brought here by writ of error.

Before the trial, Moore applied for a continuance, and filed an affidavit, setting forth, “ That Jacob Lavo was a material witness for him on the trial of his suit; that said witness resided in Georgetown, St. Clair county, in this State, and promised the affiant to be present at the term of court to testify in said case, and said he was subpoenaed for plaintiff, and was absent against his (defendant’s) will and consent. That defendant expected to prove by said absent witness, who had testified before a justice of the peace in said case, that said witness was present at the time the supposed trespass sued for was committed, and that defendant at that time used no more forcé than was necessary for the defense of his person, on that occasion.” Affiant further swore that the witnesses who saw the said supposed trespass, differ materially as to the circumstances attending the same, and affiant could not safely proceed to trial in the absence of said witness, and this affidavit was made to enable affiant to have a fair trial on the merits, and that he expected to procure the attendance of said absent witness at the next term of said court.

The court overruled the said motion for a continuance, to which Moore, the defendant below, at the time excepted, and assigns said decision for error.

W. H. Underwood, for Plaintiff in Error.

R. S. Nelson, and Omelveny & Kennedy, for Defendant in Error.

Caton, C. J.

The plaintiff in error complains, that his motion for a continuance was overruled. The feature that distinguishes this case from that of Day v. Gelston, 22 Ill. 102, is, that here the witness told the party, that he was subpoenaed by the opposite party, as a witness in the same cause; while in that case, the witness merely promised to attend without a subpoena. We there held that if a party would rely upon the promise of the witness to attend, he must run the hazard of having the promise violated. Nor is this case any better for the-party complaining. He had no right to appropriate the diligence used by the opposite party, to his own use. He knew that his adversary had a right to tell the witness that he need not attend in obedience to the subpoena, and thus relieve him. from his obligation to obey it. Indeed, he might well expect if the party who subpoenaed the witness found his opponent wanted him upon the trial, that he would relieve him from the trouble of attending.

The judgment is affirmed.

Judgment affirmed.