The refusal of the court below to continue a cause after it is
at issue cannot be assigned for error.
The plaintiffs below, Woods & Bemis, took a bill of
exceptions to the refusal of the court to continue the cause till
the next term upon their motion grounded on an affidavit stating
the absence of a witness, the facts which they expected to prove by
him, on a belief that he would prove those facts (which appeared to
be material to the issue), that he resided in the State of
Maryland, about 25 miles from the place of trial, had been
summoned, and promised to attend; that the cause had been called at
a former day for trial in the regular course of the docket, and was
then postponed at the request of the plaintiffs on account of the
absence of that witness; that the cause being now again called for
trial, the witness was still absent, but it was expected that his
attendance might be had at the next term.
The bill of exceptions stated a general rule of practice which
had been made at a former term and entered on the minutes of the
court and which was still in force,
"that when a motion shall be made for the continuance of a cause
for want of a witness, the affidavit must state the fact or facts
which the party making the affidavit expects to prove by such
witness and that the said party verily believes that the said
witness will prove such fact or facts, and that he the deponent has
used all proper means to obtain the attendance of such witness, and
that he believes he shall be able to procure the testimony of such
witness at the next term, or in a reasonable time to be therein
stated."
No motion had been made for an attachment against the witness,
or any other process to compel his attendance.
Page 8 U. S. 238
By the Court.
The question is whether a refusal to continue a cause can be
assigned for error.
The impression of the Court is that it cannot. Has the party, by
law, a right to a continuance in any case? If he has, it will have
weight. Is it not merely a matter of favor and discretion?
This is a case in which this Court cannot look into the merits
of the question whether the court below ought to have granted a
continuance of the cause.
Judgment affirmed, with costs.
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