Continuance

It has been repeatedly decided in this court, that a motion for the continuance of the cause addresses itself to the sound judicial discretion of the court, and its decision, for or against the motion, cannot be assigned as error in this court.

The adjournment of a cause from one day to another of the same or a subsequent term. The postponement of the trial of a cause. In the ancient practice, continuances were entered upon the record, and a variety of forms adapted to the different stages of the suit were in use. See 1 Chit. PI. 455; 3 Bla. Com. 316. The object of the continuance was to secure the further attendance of the defendant, who having once attended could not be required to attend again, unless a day was fixed. The entry of continuance became at the time mere matter of form, and is now discontinued in England and most of the states of the United States. Before the declaration, continuance Is by dies datus prcce partium; after the declaration, and beimparlance after issue Joined, vult. 1 Chit. PI. 455, 749; Bac. Abr. Pleas (P), Trial (H); Com. Dig. Pleader (V); Steph. PI. 64. In its modern use the word has the second of the two meanings given above. Among the causes for granting a continuance are absence of a material witness; Steinnietz v. Currie, 1 Dall. (U. S.) 270, 1 L. Ed. 132; Higginbothani v. Chamberlayne, 4 Munf. (Va.) 547; Eads v. State, 26 Tex. App. 69, 9 S. W. 68; Carter v. Wharton, 82 Va. 264; but he must have been subpoenaed; Bone v. Hillen, 1 Mill, Const. (S. C.) 198; Parker v. Leman, 10 Tex. 116; Wright v. State, 18 Ga. 383; in many states the opposite party may prevent it by admitting that certain facts would be proved by such witness; Smith v. Creason's Ex'rs, 5 Dana (Ky.) 298, 30 Am. Dec. 688; Willis v. People, 1 Scam. (111.) 399; Dominges v. State, 7 Smedes & M. (Miss.) 475, 45 Am. Dec. 315; Nave v. Horton, 9 Ind. 563; Keith v. Knoche, 43 111. App. 161; State v. Hatfield, 72 Mo. 518; and the party asking delay is usually required to make affidavit as to the facts on which he grounds his request; Rhea v. State, 10 Yerg. (Tenn.) 25S; Vickers v. Hill, 1 Scam. (111.) 307; Phillips v. Reardon, 7 Ark. 256; People v. Baker, 1 Cal. 403; Smith v. Barker, 3 Day (Conn.) 2S0, Fed. Cas. No. 13,012; Ralston v. Lothain, 18 Ind. 303; and, in some states, as to what he expects to prove by the witness; Nash v. Upper Appomattox Co., 5 Gratt. (Va.) 332; Bailey v. Hardy, 12 111. 459; Sledman v. Hamilton, 4 Mc Lean 538, Fed. Cas. No. 13,343; Merchant v. Bowyer, 3 Tex. Civ. App. 367, 22 S. W. 763; if the opposing counsel stipulates that the witness, if called, would so testify, a continuance is refused. In other states, an examination is made by the court; Harris v. Harris, 2 Leigh (Va.) 584; Irroy v. Nathan, 4 E. D. Sm. (N. Y.) 68; as to what diligence was used to procure his presence; St. Louis & K. C. R. Co. v. Olive, 40 111. App. 82; Weeks v. State, 31 Miss. 490; Fiott v. Com., 12 Gratt. (Va.) 564; and it is error to grant a continuance on oral statement of counsel; Whaley v. King, 92 Cal. 431, 28 Pac. 579; the court is not bound to grant it where it is altogether conjectural whether the. witnesses are alive, and" if so where they reside or if their evidence can be procured; Lowenstein v. Greve, 50 Minn. 383, 52 N. W. 964; or to examine a witness not summoned; Soper v. Manning, 158 Mass. 381, 33 N. E. 516; inability to obtain the evidence of a witness out of the state in season for trial, in some cases; U. S. v. Duane, 1 Wall. Sr. 5, Fed. Cas. No. 14,- 996; Marsh v. Hulbert, 4 Mc Lean 364, Fed. Cas. No. 9,116; filing amendments to the pleadings which introduce new matter of substance; Tourtelot v. Tourtelot, 4 Mass. 506; Jones v. Talbot, 4 Mo. 279; Taylor v. Heffner, 4 Blackf. (Ind.) 387; filing a bill of discovery in chancery in some cases; No. 6,929, 1 L. Ed. 700; detention of a party in the public service; Republica v. Matlack, 2 Dall. (Pa.) 108, 1 L. Ed. 310; see Nones v. Edsall, 1 Wall. Jr. 189, Fed. Cas. No. 10,290; illness of counsel, sometimes; Shultz v. Moore, 1 Mc Lean 334, Fed. Cas. No. 12,825; Rhode Island v. Massachusetts, 11 Pet. (U. S.) 226, 9 L. Ed. 697; State v. Adams, 5 Harring. (Del.) 107; Thompson v. Thornton, 41 Cal. 626; Brady v. Malone, 4 la. 146; Printup v. Mitchell, 19 Ga. 586; or surprise from unexpected testimony; Branch v. Du Bose, 55 Ga. 21; Childs v. State, 10 Tex. App. 183. But it is not sufficient where it is not shown that the client's case is prejudiced thereby; Board of Com'rs of Tipton County v. Brown, 4 Ind. App. 288, 30 N. E. 925. The request must be made in due season; Woods v. Young, 4 Cra. (U. S.) 237, 2 L. Ed. 607; Mc Courry v. Doremus, 10 N. J. L. 245; Clinton v. Hopkins, 2 Root (Conn.) 25; Smith v. Holebrook, id. 45; Hanna v. Mc Kenzie, 5 B. Monr. (Ky.) 314, 43 Am. Dec. 122. It is addressed to the discretion of the court; Fiott v. Com., 12 Gratt. (Va.) 564; Scogin v. Hudspeth, 3 Mo. 123; Farrand v. Bouchell, Harp. (S. C.) 85; Justrobe v. Price, Harp. (S. C.) 112; Sheppard v. Lark, 2 Bailey (S. C.) 576; Cornelius v. Boucher, Breese (111.) 32; Cox v. Hart, 145 U. S. 376, 12 Sup. Ct. 962, 36 L. Ed. 741; Smith v. Collins, 94 Ala. 394, 10 South. 334; Baumberger v. Arff, 96 Cal. 261, 31 Pac. 53; Wilkowski v. Halle, 37 Ga. 678, 95 Am. Dec. 374; Armour & Co. v. Kollmeyer, 161 Fed. 78, 88 C. C. A. 242; 16

The postponement of the proceedings in a cause, as putting oflf a trial, etc.; an entry on the record of a cause for the purpose of formally continuing it in court, or for the purpose of pi'operly connecting the proceedings on the record.

In old law. The adjournment of the proceedings in a cause from one day or one term to another; the entry of such adjournment on the record.

The xadjournment or pustponement of an action pending in a court, to a subsequent day of the same or another term. — Also the entry of a continuance made upon the record of the court, for the purpose of formally evidencing the postponement, or of connecting the parts of the record so as to make one continuous whole.

1. After an issue or demurrer has been joined, as well as in previous stages of a proceeding, a day is given, and entered upon the record, on which the parties are to appear from time to time as the exigence of the case may require. The giving of this day is called the " continuance," because thereby the proceedings are continued without interruption from one adjournment to another.' 2. Adjournment, postponement, to another term of court. May be had on account of — the absence of a material witness, who has been subpoenaed, unless the op- 'L. con-tingere, to touch; to relate to, happen. 2 People V. Yonkers, 39 Barb. 272 (1863). See also 16 Op. Att.-Gen. 413; 30 Me. 3S4. s See Fearne, Cont. Eem. 373. < Jemison v. Blowers, 5 Barb. 692 (1849); Haywood u. Shreve, 44 N. J. L. 104 (1888). » Weather jead v. Stoddard, 58 Tt. 623 (1886), cases. posite party admits what such witness would testify to; inability to obtain the evidence of a witness out of the State in time for trial; detention of a party in a public service; sickness or death of a party or of counsel; commission outstanding for taking testimony; amendment to pleadings which occasions surprise; filing a bill of discovery. An af Sdavit to the alleged fact constituting the ground for continuance is required. See Amendment, 1; Nisi. Puis darrein continuance. Since the last adjournment or term of court. A plea by which the defendant takes advantage of a matter which has arisen since he entered his original defense.! As, that the plaintiff, who was then a feme sole, has married; or that she has given a release.* In efl Eect, a pleading of facts occurring since the last stage of the suit, whatever that be, provided it precedes the trial.^ Confesses the matter which was before in dispute. Not allowed" if a continuance has intervened between the time when the matter arose and when it was pleaded: for the defendant is guilty of neglect, and is, besides, supposed to rely upon his former plea. ^i Tor is it allowed after a demurrer has been determined, or a verdict been given: because relief may be had by motion. 3 The appointment of a successor in office, after proceedings by mandamus are begun, may be set up by a plea puis darrein continuarux. * See Continuando; Discontinuance. 3. " Continuance in office," in a constitution prohibiting the legislature from increasing the compensation of any public officer during such period, means continuance under one appointment.^ See Compensation, 1.

Adjournment, formerly entered on the was by dies datus, tion, by imparlance, if after issue, by not sent the writ; and the court icishes to difficult. Continuando, /. Bi/ trespass, whereby the sion of Kke or repeated one cause of action.

practice. The adjournment of a cause from one day to another is called a continuance, an entry of which is made upon the record. If these continuances are omitted, the cause is discontinued, and the defendant is discharged sine die, without a day, for this term. By his appearance he has obeyed the command of the writ, and, unless he be adjourned over to a certain day, he is no longer bound to attend upon that summons. 3 Bl. Com. 316. Continuances may, however, be entered at any time, and if not entered the want of them is aided or cured by the appearance of the parties; and as a discontinuance can never be objected to pendente placito, so after the judgment it is cured by the statute of jeofails. Tidd's Pr. 628, 835. Before the declaration the continuance is by dies datus prece partium; after declaration and before issue joined, by imparlance; after issue joined and before verdict, by vicecomes non misit breve; and after verdict or demurrer by curia advisare vult. 1 Chit. Pl. 421, n. (p); see 5 Vin. Abr. 454; 5 Bac. Abr. 473, Pleas, P; 6 Bac. Abr. 650, Trial, H; Com. Dig. Pleader, V. See as to the origin of continuances, Steph. Pl. 31; 1 Ch. Pr. 778, 779.