Fiske v. Berryhill
Supreme Court of Iowa
Appeal from Johnson District Court. This action was commenced in February, 1858. The issues were fully made up, but at the first term, by agreement of defendants, plaintiffs had judgment for the full amount of their claim. At the same term, on application of defendants, this judgment was set aside. In June, 1859, they moved for a continuance of the cause, on account of the absence of a material witness. This motion was overruled and from this ruling they appeal.
1Opinion of the CourtWright, C. J.
We are not prepared to say that there was error in this ruling. Without examining other defects pointed out to the affidavit, it will be sufficient to advert to one.
*204The law requires that the affidavit shall show that due diligence has been used to obtain the testimony. To comply with this requirement, the appellants state that they had every reason to believe that said witness would remain at the place where court xvas held during the term, and that they only learned of his absence a few days ago and that since said time, (to-wit, May 14th,) they have used every exertion to ascertain the…
2Cases cited1 opinion
- Brady v. MaloneSupreme Court of Iowa · 1856
3Cited by1 opinion
- Peck v. ParchenSupreme Court of Iowa · 1879