upon the ground that his attorney would be engaged in another court, if error against the plaintiff, is merely error as to jurisdiction, and does not make void a judgment for plaintiff.34 35 36 § 1134. Contents of affidavit.-Where the continuance is asked for on the ground of the absence of a witness, the affidavit must show: 1. That the evidence designed to be obtained is material; 2. That the evidence designed to be obtained is not cumulative, or that affiant cannot prove the same matters by other witnesses; 3. That he cannot safely proceed to trial without his evidence; 4. The affidavit should show that there is a reasonable prospect of obtaining the testimony at some future time ;57 an affidavit which states that the applicant knows of no witnesses in the state by whom the material facts can be proved is insufficient 38 5. That due diligence has been used to procure the witness,39 and the character of that diligence, 10 and also that the witness cannot be readily reached by attachment; and the court may also require the moving party to state on affidavit the evidence which he expects to obtain;42 6. That application is not made for delay merely;43 7. That a party has a good and substantial cause of action or defense on the merits.4 Where an affidavit for a continuance was filed, the court should not permit it to be strengthened by other affidavits of the same person.45 84 Disque v. Herrington, 139 Cal. 1, 72 Pac. 336. 35 People v. Quincy, 8 Cal. 89; People v. Jenkins, 56 Cal. 4; Pierce v. Payne, 14 Cal. 419; People v. Gaunt, 23 Cal. 156; Pope v. Dalton, 31 Cal. 218. Compare People v. Ah Lee Doon, 97 Cal. 171, 31 Pac. 933. 36 Harrell v. Durrance, 9 Fla. 490. 37 Richardson v. People, 31 Ill. 170; Harper v. Lamping, 33 Cal. 641; People v. Ashnauer, 47 Cal. 98; People v. Cleveland, 49 Cal. 577; State v. Rosemurgey, 9 Nev. 308. 38 Thompson V. Lord, 14 Iowa, 591. 39 Cal. Code Civ. Proc., § 595; Ariz. Civ. Code, pars. 1383, 1386; Idaho Rev. Codes, § 4372; Mont. Rev. Codes, § 7036; Nev. Comp. Laws, § 3255; Or. B. & C. Codes, § 115; Utah Rev. Stats., § 3133; Wash. Bal. Codes, 4977; Wyo. Rev. Stats., 40 44 § 4279; Kuhland v. Sedwick, 17 40 People v. Thompson, 4 Cal. 240. 41 People v. Weaver, 47 Cal. 106; State v. Gray, 19 Nev. 212, 8 Pac. 456. 42 Cal. Code Civ. Proc., § 595; Bruton v. State, 21 Tex. 337; Winslow v. Bradley, 15 Wis. 394. 43 People v. Thompson, 4 Cal. 238. 44 Ballston Spa Bank v. Marine Bank, 16 Wis. 120. 45 State v. Buckner, 25 Mo. 167. As to necessity of affidavit, see Stewart v. Sutherland, 93 Cal. 270, 28 Pac. 947; McGrath v. Tallent, 7 Utah, 256, 26 Pac. 574. An affidavit for a continuance on account of the absence of a party, under section 594 of the California Code of Civil Procedure, need not show the materiality of the evidence expected to be obtained.46 The affidavit upon which the application is founded must state all the facts required in the statute to be stated." It must state particular facts, as distinguished from legal conclusions.48 A motion based on the absence of a witness whose knowledge of the facts he was desired to relate was purely hearsay is properly denied; and the materiality of the testimony of an absent witness must be made to clearly appear.50 The affidavit is fatally defective when it fails to show that there are not other persons by whom the defendant could prove the same facts that he expected to prove by the absent witness.51 Where a party opposing a continuance asked for on the ground of the absence of a material witness admits that the witness, if present, would testify as stated in the moving affidavit, the trial court, under the Oklahoma statute,52 commits no error in refusing the continuance ;53 and under the California statute the trial court must refuse such continuance." § 1135. Continuance, when refused.-A continuance will not be granted solely to allow a party to obtain evidence on a point rendered immaterial by his own answer.55 Continuance will not be granted to the prejudice of the opposite party when the applicant has been guilty of negligence.56 A party who takes no steps to obtain the deposition of a witness whom he knows to be a seafaring man is not entitled to a continuance for absence of such witness;57 or in some instances, where a deposition has not 46 Jaffe v. Lilienthal, 101 Cal. 175, 35 Pac. 636. Contra, see McMahan v. Norick, 12 Okla. 125, 69 Pac. 1047. 47 Kent v. Favor, 3 N. Mex. 218 (347), note 220, 5 Pac. 470. 48 Deemer v. Falkenburg, 4 N. Mex. 57 (149), 12 Pac. 717. 49 Longnecker v. Shields, 1 Colo. App. 264, 28 Pac. 659. 50 Dawson v. Coston, 18 Colo. 493, 33 Pac. 189. 51 State v. Marshall, 19 Nev. 240, 8 Pac. 672. As to instances of sufficient affidavits, see Hewes v. Andrews, 12 Colo. 161, 20 Pac. 338; Danielson v. Gude, 11 Colo. 87, 17 Pac. 283; State v. Gray, 19 Nev. 212, 8 Pac. 456. 52 Okla. Stats., § 4449. 53 Chandler v. Colcord, 1 Okla. 268, 32 Pac. 330; Hartford Fire Ins. Co. v. Hammond, 41 Colo. 323, 92 Pac. 686. 54 Cal. Code Civ. Proc., § 595; Hartford Fire Ins. Co. v. Hammond, 41 Colo. 323, 92 Pac. 686. 55 Ballston Spa Bank v. Marine Bank, 16 Wis. 120. 56 Dulany v. Boston, 2 Har. (Del.) 350. 57 Deanes v. Scriba, 2 Cal. 415. 58 yet been returned. So where a party neglects to subpoena a witness, relying on his promise to attend,50 and where the opposite party admits that the witness will testify as stated by the affiant." Where the absent witness was a fugitive from justice, and there was no probability of his presence at the next term, and his deposition taken at examination might have been used by the party applying for a continuance, there was no error in refusing the application. Nor will the court abuse its discretion in refusing a continuance where the facts shown on the application cast suspicion on the good faith of the applicant. It is not error to refuse a continuance on account of absence of a witness, when it does not appear that the attendance of the witness can be procured in a reasonable time, nor to refuse a continuance on the grounds of surprise.* 61 63 62 § 1136. Election contests.-A county judge, at chambers, has no power to grant a continuance in an election contest, where trial was set at a future day.65 In such contests, however, the court may, of its own motion adjourn the special session for several days, on account of prior engagements rendering the adjournment necessary, and the court does not lose jurisdiction thereby." 67 § 1137. Grounds for continuance. The absence of evidence is a ground for continuance, the same in actions of an equitable as in those of a legal character." But a continuance for absence of witnesses will not be granted where only two days have intervened between issuance of subpoena and application for continuance, and the witnesses reside in a remote part of the county.68 Nor where the affidavit states that subpoenas for the absent witnesses had been placed in the sheriff's hands four days. before the application, but that he had been unable to find the 58 Abrook v. Ellis, 6 Cal. App. 451, 92 Pac. 396. 59 Freeland v. Howell, Anth. N. P. 272. 60 Loftus v. Fischer, 113 Cal. 286, 45 Pac. 328. 61 People v. Cleveland, 49 Cal. 577. 62 People v. Mortimer, 46 Cal. 114. 63 People v. Lewis, 64 Cal. 401, 1 Pac. 490. See Dawson v. Coston, 18 Colo. 493, 33 Pac. 189. 64 Merrill v. O'Brien, 48 Wash. 415, 93 Pac. 917. 65 Norwood v. Kenfield, 34 Cal. 329. 66 Falltrick v. Sullivan, 119 Cal. 613, 51 Pac. 947. 67 Howard v. Freeman, 3 Abb. Pr. (N. S.) 292. See Robertson v. Woolley, 6 Wash. 156, 32 Pac. 1060; Dupont v. McAdow, 6 Mont. 226, 235, 9 Pac. 925. 68 Parker v. Campbell, 21 Tex. 763. 69 74 witnesses. Newly discovered evidence is also a ground for continuance. So is surprise a ground for continuance," as by withdrawal of demurrer, and a replication filed in its stead,72 or where a pleading is amended in a matter of substance.73 So on reapportionment of causes. Absence of counsel on account of sickness, where other competent counsel cannot be had, is a good ground for continuance.75 So where counsel is absent on account of sickness in his family, and the party knows nothing of it until the morning of the trial, the court should at least continue the cause until other counsel can familiarize themselves with the facts.76 The attendance of a member of the legislature. on its sessions may be a ground for a continuance of a cause in which he is a defendant." But it has been held in California that the voluntary absence of a defendant on important business is no ground for a continuance; 78 and likewise in case of absence of an owner of an undivided part of real estate which is the subject of condemnation proceedings." Where in a suit against partners, on a joint claim against them, it appeared that one had been declared bankrupt, but had not yet obtained his discharge, and the case was continued as to him, it was held, on motion for continuance by the other partner, that the cause could not proceed as to him until the disposition of the bankrupt proceedings against his copartner.80 insufficient.-Voluntary § 1138. Instances where grounds absence of defendant on important business is no ground for continuance; nor is mistaken advice of counsel to his client not to prepare for trial.82 Voluntary absence of attorney is not cause for continuance;88 and a party to an action has no abso 69 Jacks v. Buell, 47 Cal. 162. 70 Berry v. Metzler, 7 Cal. 418; Allcorn v. Rafferty, 4 J. J. Marsh, 220. 71 Ross V. Austill, 2 Cal. 183; People v. Holden, 28 Cal. 124; Schellhous v. Ball, 29 Cal. 608; cited in Doyle v. Sturla, 38 Cal. 456. 72 Risher v. Thomas, 1 Mo. 739. 73 Tunstall v. Hamilton, 8 Mo. 500; Tourtelot v. Tourtelot, 4 Mass. 506. 74 Elliott v. Cadwallader, 14 Iowa, 67. 75 People v. Logan, 4 Cal. 188; Eltzroth v. Ryan, 91 Cal. 584, 27 Pac. 932. 78 Wilkinson v. Parrott, 32 Cal. 102. 79 Portland etc. Ry. v. Ladd, 47 Wash. 88, 91 Pac. 573. 80 Tinkum v. O'Neale, 5 Nev. 93. 81 Wilkinson v. Parrott, 32 Cal. 102. As to continuance granted on account of illness of plaintiff, see Jaffe v. Lilienthal, 101 Cal. 5, 35 Pac. 636. 82 Musgrove v. Perkins, 9 Cal. 211. 83 Haight v. Green, 19 Cal. 113; lute right to a continuance because of the absence of his attorney, who is engaged in the trial of a case in another court, but it is within the sound discretion of the trial court to grant or refuse the continuance. When through the inadvertence of a party he is unable to produce evidence which is in his own possession, no continuance will be granted.85 The absence of a transient witness whom the party had no opportunity of examining before the trial is no excuse for putting off the trial. It is no ground for a continuance that a material witness for the applicant is in another county in this state, where the applicant has taken no steps to procure his deposition, because he saw the witness several weeks before, and the witness promised to be present at the trial;s nor that the applicant was informed by his attorneys, several weeks before the term, that the case could not be tried at that term, and that such attorneys reside at a great distance, and are not present, and their attendance cannot be procured. The fact that a case has been continued before may be taken into consideration.88 § 1139. Insufficient statement. In an application for continuance, the allegation that a party has used all the diligence in his power is not sufficient; it should be shown to the court of what such diligence consisted, whether by exhausting the process of the court or otherwise.89 For the same reason, if a party states, on information and belief, that he can procure the personal attendance of a witness from a distant foreign country, he should set forth the reasons for the belief and the nature of his information, that the court may decide whether or not there is a reasonable ground to believe that the witness will attend." Inconvenience to prepare for hearing is not a good ground for postponement of the argument." But parties will not be forced. to trial without a reasonable opportunity to prepare therefor, and the court would abuse its discretion in refusing a contin Adams v. Adams, 1 Duval, 167. See 84 Baumberger v. Arff, 96 Cal. 261, |