The County of Muscatine v. Carpenter. policy, though not prohibited by statute, the courts generally refuse to enforce. Boardman and Brown v. Thompson, 25 Iowa, 487, and cases cited. We are of opinion, however, that the bond in this case does not come within the rule. Conceding that McDaniel drew the money from the county treasury in violation of the statute, the object and purpose of the bond was that he should disburse it for lawful objects, and account to the board of supervisors for its expenditure. It would hardly be contended that a public officer, who makes an illegal use of public funds, cannot be made to pay it back in an action against him. Aud where he has done this, and executes a bond with sureties to pay over, the case would not be different. Again this bond was made for the purpose of protecting the public the county against loss of its funds, which had been legally appropriated for lawful objects. Now, that one set of officers may have enabled another officer to draw these funds from the county treasury, in a manner not allowed by law, cannot prejudice the public- the political corporation- and deprive it of the right to recover for the misapplication of its funds. If all the county officers had united in the violation of the law, in respect to the county funds, and had actually robbed the treasury of its entire contents, the illegal act of one would afford no shield against the legal responsibility of the others or of their sureties. So the illegal acts of the board of supervisors, clerk and treasurer, in respect to the manner of paying out the moneys of the county, which had been regularly appropriated for legal purposes, can afford no defense to an action on a bond given to secure the faithful disbursement of the moneys thus appropriated. There was, therefore, no error in the order of the court below sustaining the demurrer, and its judgment is Affirmed. Boone v. Mitchell. BOONE V. MITCHELL. Continuance: DISCRETION. While the granting or refusing a motion for continuance, when based upon the question of diligence used in procuring the testimony of an absent witness, is, to a great extent, a legal question, yet it necessarily involves much of judicial discretion; and, where no abuse of such discretion is shown, the action of the court below will not be disturbed on appeal. Appeal from Floyd District Court. MONDAY, DECEMBER 18. ACTION upon an alleged contract for quarrying twenty cords of stone. The plaintiff avers that defendant refused to allow him to complete the contract, and claims damages in the sum of $25. The defendant denies the contract, as stated by plaintiff, and sets up a different contract, which, he claims, the plaintiff has broken, to defendant's damage in the sum of $40. The plaintiff, by reply, denies the defendant's claim. The defendant moved for a continuance, which was overruled, and on trial to the court, there was judgment for plaintiff for $23.85. Defendant appeals. Pratt & Root for the appellant. W. H. Johnson for the appellee. COLE, J.-The only question in this case arises upon the defendant's motion and affidavit for continuance. The action was commenced, and issues made on the 7th day of July, 1870; the next regular term of that court was, as fixed by law, on the first Monday of September following. The abstract does not show what action, if any, was taken at that term. At the April term following (1871), the defendant moved a continuance of the cause, upon the fol Boone v. Mitchell. lowing affidavit: "H. W. Mitchell, the defendant in the foregoing action, on oath, deposes and says: That Clark E. Mitchell, his son, whose residence is in Rockford, Floyd county, Iowa, is a material witness in the foregoing suit; that he left here in November, 1870, to attend school at Ripon, Wisconsin; then went to the pineries in northern Wisconsin; that at his departure he promised to return by March 1, 1871, to commence spring work. That I received a letter from him about the 1st of March, 1871, that he would be at home, in Floyd county, about April 1, 1871. That from his letters and the letters I have written him, I have no doubt he will be in attendance at the next term of this court. That on account of my expectation of his return, grounded on his letters, and from the fact that he was in the pineries, where a letter could seldom reach him, I did not sue out a commission to take his deposition in this case. That I knew of no notary or officer before whom it could be taken." The affidavit then states the facts the defendant expects to prove by said witness, which are material and competent, and that the affiant believes them true, and knows of no other witness by whom they can be fully proved. The objections to the affidavit are, in substance, that it does not show due diligence as contemplated by Rev., S$ 3010, 3011; and the only error assigned is upon the overruling of the motion for continuance grounded upon this affidavit. Counsel have not favored us with an argument, but have submitted the case upon the abstract alone. It appears that the cause was at issue in July, 1870; that one term of court had passed before the witness left his home or the county; that the defendant knew when he left home that he would need his testimony in the case, and deliberately took the chances of his return before the spring term of court, and made no effort to take his deposition either before or after he left. While the granting or refusing a Philo v. The Illinois Central R. R. Co. motion for continuance, when based on the question of diligence is, to a great extent, a legal question, yet it necessarily involves much of judicial discretion. Take this case, for instance, where one term of court had been passed; it may have been passed by reason of the conduct of the defendant, who may have manifested a purpose to prolong the litigation and postpone the trial; the amount in controversy is small, and a continuance would or might involve more costs and expense than the sum claimed by either party; these matters, and many others, are before the court, and where the question is a close one, they may well determine the decision either way. And while we would not have reversed a decision granting a continuance, neither do we feel justified in reversing the decision refusing it; and this on the ground that there is at least such a measure of judicial discretion involved as will render it improper to reverse a judgment where such discretion has not been abused. Affirmed. PHILO V. THE ILLINOIS CENTRAL R. R. Co. 1. Railroad: NEGLIGENCE OF EMPLOYEE. Where an employee of a railroad company is injured in consequence of the negligence of a co-employee, the company will be regarded as "the perpetrator" of the act within the meaning of section 4111 of the Revision. 2. RIGHT OF ACTION ACCRUES TO REPRESENTATIVE. Where an employee of a railroad company is killed through the negligence of a co-employee, a right of action, as provided by section 7, ch. 169, acts 9th General Assembly, accrues to the representatives of the deceased. Appeal from Dubuque Circuit Court. SATURDAY, DECEMBER 16. WILLIAM PHILO was employed by defendant as a brakeman upon a freight train running upon its road. While 33 47 115 314 Philo v. The Illinois Central R. R. Co. in the discharge of his duty, under such employment, in an attempt to couple the tender of the locomotive to another car, he was so severely injured that he died within a few hours. The plaintiff is the executrix of his estate, and brings this action to recover damages resulting to the estate from the alleged careless act of defendants' servants, which, it is claimed, caused his death. A verdict for plaintiff, in the sum of $16,000, was rendered. Upon a motion for a new trial, the court held that the verdict was excessive and ordered that it be set aside unless plaintiff should remit $8,500. The remittitur for that sum was entered, and thereupon judgment was entered against the defendant for $7,500. From this judgment the defendant appeals. Cram & Rood for the appellant. Roberts & Fouke for the appellee. BECK, J.-I. The first position of defendant's counsel is this: Under Revision, § 4111, which provides that "when wrongful act produces death, the perpetrator is civilly liable for the injury." Defendant is not liable in this action, for the reason that it was not the perpetrator of the act causing the death of plaintiff's intestate. Conceding the death to have been caused by the negligence of the fellow servants of deceased, it is insisted, by counsel, that the perpetrators of the wrongful act were such servants and not the defendant. This position is supported by the following argument briefly stated: It is a wellsettled rule of the authorities, concurred in by this court, in Sullivan v. The Mississippi and Missouri Railroad Co., 11 Iowa, 421, that, aside from statutory enactments, an employer is not liable to an employee for injuries resulting to him on account of the negligence of a fellow servant. This rule is founded upon the doctrine, as it is |