Dukes v. Walton

¶1 (Dissenting in part) : This being a chancery case, I am inclined to the view'that on the showing made the chancellor should have granted the application for further time in which to take the téstimony of Joe Dukes. The application stated positively that Dukes would testify to certain material facts. Even in actions at law, I believe a motion for continuance on the ground of the absence of a material witness, which motion is apparently made in good faith and which is otherwise sufficient, should not be denied merely because the motion does not set forth the means by which the movant knew or was informed that the absent witness would testify as alleged. If the application is otherwise good, and alleges positively that such absent witness, if permitted to testify, would testify to certain material facts, this should, in my opinion, be prima facie sufficient. In other words, I think the rule heretofore pre *179 vailing should be modified in this respect. It might in many cases prove embarrassing to a party to have to show how he obtained such information, although it might have come to him in a perfectly legitimate way, so far as he was concerned. In the interest of justice, no unnecessary obstacle should be put in the way of getting all the material evidence before the court.