CHOATE & BROWN, Appellants, v. THE BULLION MINING COMPANY, Respondent
Choate v. Bullion Mining Co.
CHOATE & BROWN, Appellants, v. THE BULLION MINING COMPANY, Respondent.
CHOATE & BROWN, Appellants, v. THE BULLION MINING COMPANY, Respondent.
A motion for a continuance is always addressed to the sound discretion of the Court, and should not be interfered with except where there has been a manifest abuse of that discretion.
Appeal from tbe District Court of tbe Eirst Judicial District of tbe Territory of Nevada, Hon. J. W. Nokth, presiding.
Tbe affidavit on motion for continuance in tbis case shows that affiant is tbe Superintendent of tbe Bullion Mining Company, tbe defendant; that defendant could not safely proceed to trial' during that term of tbe Court because of tbe absence of one M. E. Letts, a material witness on tbe part, of defendant ; that Letts left tbe Territory of Nevada for tbe State of California in tbe month of November, 1862, and left said State in March, A. D. 1863; that immediately after arriving in said State be, tbe said Letts, in company with others, started to Lower California on a prospecting tour, and bad been absent ever since; that immediately after tbis suit was commenced tbe affiant wrote to different places in order to ascertain bis whereabouts so that bis deposition might be taken, but that all bis efforts to ascertain bis whereabouts bad failed.
. It further appears that said Letts was intending to return to Virginia City, and affiant believed that be would so return before tbe next term of tbe Court. That affiant bad written to every place where said Letts might be expected to get bis letters, yet that be bad received no answer; that Letts’ business is such that affiant knew be would return before many months. It also appeared that tbe defendant expected to prove by said Letts that be was tbe Secretary and agent of tbe Wellington Company from tbe time of its organization, immediately after tbe location of said ground, up to tbe Fall of 1861, and was conversant with all tbe business transactions of tbe company, and that tbe plaintiff, Choate, never, during said time, paid any assessments upon said ground, and that said Letts wrote many letters to said Choate concerning tbe ground in controversy, and received a letter in reply from him; that said Letts informed affiant that Cboate stated in said letter tbat be owned no ground in said company, and did not claim any, and tbat if bis name was pnt in tbe location it was without bis knowledge or consent; tbat if there was any ground represented by reason of bis name being placed on said notice, tbe said company was at liberty to strike bis name off from said notice, and tbe said letter fully empowered officers of tbe company to do so; tbat in accordance with tbe directions and power contained in said letters, and at tbe request of tbe plaintiff, Brown, tbe said company permitted other parties to take tbe said ground and pay assessments on tbe same; tbat Letts still bad said letter in bis possession, and tbat defendant could procure it when be arrived; tbat affiant knew of no one else by whom tbe same facts could be proved, and tbat tbe said letter cannot be procured until tbe said Letts can be beard from or returns; tbat bis testimony cotild be obtained by tbe next term of tbe Court.
Robi/nson dk Foster, Attorneys for Defendants.
J. R. MoGormell, Attorney for Plaintiff.
Opinion by
Lewis, C. J.,
full Bench concurring.
At tbe trial of this cause before tbe referee, tbe defendant moved for a continuance, on tbe ground of tbe absence of a material witness.
Tbe referee refused to grant tbe continuance, defendant excepted, and this is one of tbe grounds relied on for a reversal of tbe judgment which was in favor of tbe plaintiffs.
A motion for a continuance is always addressed to tbe sound discretion of tbe Court, and should not be interfered with except where there has been a manifest abuse of tbat discretion. In this case we think tbe affidavit upon which tbe continuance was claimed meets all tbe requirements of tbe statute, and tbe continuance should have been granted.
Other grounds for a reversal of tbe judgment are relied upon by tbe appellants, but as this is sufficient to authorize tbe reversal of tbe judgment, it is unnecessary to pass upon them.
Judgment reversed and a new trial ordered.