delivered the opinion of the Court:
The refusal of the court below to grant a continuance to appellants, is urged as a ground of reversal. The suit was commenced in February, to the April Term, 1865. At that time the cause was continued upon the account of Hardriek’s absence *225as a witness. At the September Term, 1860, the cause was submitted to the court for trial, without a jury, by consent of parties, and the cause was taken under advisement until the next February Term, when the order of the previous term submitting the cause for trial was set aside, and the case reinstated on the docket for trial, and a continuance was entered. And at the September Term, 1866, the motion for a new trial was entered and overruled.
We regard the affidavit as fatally defective, in not showing that appellants had used reasonable diligence. It is stated in the affidavit that the witness resided in the State of Indiana previous to his departure to Oregon, and after the suit was commenced. This being so,, and he being beyond the process of our courts, appellants had no right to rely upon his attendance as a witness; they knew that he could not be compelled to attend. They also knew, that, being a non-resident, they had the right to take his deposition. And they have failed to show, by the affidavit, any reason why they had not procured it at some time within the year and a half which had elapsed after the commencement of the suit and before the trial. The affidavit shows that the witness did not leave for Oregon for some fifteen months after the suit was brought, and about five months before the term at which the continuance was asked. The only excuse made for a failure to do so, is, that the witness had left before they were aware of the fact, and they were then prevented from taking his deposition, as he was on the plains. This is, no doubt, true, but it does not rebut the presumption that they had previously ample time and opportunity to have done so, and by slight diligence could have had his testimony. There was no error in overruling the motion for a new trial, and the judgment of the court below must be affirmed.
Judgment affirmed.