uance, or in refusing to set aside a judgment taken because of hasty action in setting a case for trial at an unreasonably early day, whereby a party has been unable to be present or to prepare for trial.92 Where the affidavit for continuance failed to show the materiality of the testimony of the absent witness, but it appeared that the court in deciding the motion assumed that it did, and no objections were made on that ground by the opposite party, it was held that the objection could not be made for the first time on appeal.93 A statement is insufficient where it does not show that the defendant could not have proved the facts by other witnesses."4 § 1140. Stipulation for continuance.-A continuance may be granted on consent of parties, reduced to a written stipulation therefor; but an agreement of counsel for the continuance of a cause not reduced to writing will not be regarded by the court.95 In justices' courts the court may, by consent of the parties, given in writing or in open court, postpone the trial to a time agreed upon by the parties. A defendant dangerously ill may be required, as a condition of postponing the trial, to stipulate that his death before the next circuit shall not abate the cause.97 96 § 1141. Preventing a continuance. If the adverse party thereupon admits that such evidence would be given, and that it be considered as actually given on the trial, or offered and overruled as improper, the trial must not be postponed.98 The affidavit thereupon becomes evidence, but not conclusive proof of its contents.99 The admissions of a party wishing to avoid a continuance must be broad enough to cover all the material facts to which the absent witness would testify, as alleged in the affidavit for a continuance.100 The admission of counter-affidavits, on a motion for a continuance, is in the sound discretion of the court. 101 Where a continuance was granted for seven days in an 92 Dusy v. Prudom, 95 Cal. 646, 30 Pac. 798. 93 State v. Chapman, 6 Nev. 320. 95 Peralta v. Marica, 3 Cal. 187. Boggs v. Merced Min. Co., 14 Cal. 358; O'Neil v. New York etc. Min. Co., 3 Nev. 141. 99 Id. 100 Peck v. Lovett, 41 Cal. 521. 101 Riggs v. Fenton, 3 Mo. 28; Anonymous, 3 Day, (Conn.) 308, Fed. Cas. No. 434. See Kneebone V. Kneebone, 83 Cal. 645, 23 Pac. 1031. election contest, against the objections of respondent, and without affidavits, it was held that it operated as a discontinuance of the proceeding.102 § 1142. Waiver of rights.-Where the plaintiff to an action, with full knowledge of his right to proceed to trial only at his own option against the defendants served, and of the fact that no service had been made upon one of the defendants, who had left the state, and that no issue had been joined as to him, first agreed with the defendants served, without reservation, that the issue between him and them should be set for trial at a particular day, then asked and obtained a continuance, for the reason solely that his witnesses were not present, and in consideration of such continuance by consent agreed of record that the case should be set for trial and be tried on a particular day, it was held that this state of facts clearly constituted a waiver by plaintiff of his right to delay the trial until said other defendant had been served or issue joined in respect to him.103 Pending the trial of an action. against two defendants, the court granted a continuance as to one of them, and the plaintiff, without objection, proceeded with the trial against the other, in whose favor a judgment was subsequently rendered, and it was held that the plaintiff had waived the right to object to the irregularity at the trial by reason of the continuance.104 § 1143. Costs.-In general, taxable costs are the only terms, the payment of which should be imposed as a condition of putting off a trial,105 and only costs incurred with reference to the particular circuit.108 And when, after postponement on defendant's application, the cause went over again because of the judge's illness, he was not properly chargeable with costs of the circuit.107 It is so where the cause goes over at the circuit because plaintiff is not ready.108 102 Keller v. Chapman, 34 Cal. 635. 103 Meagher v. Cagliardo, 35 Cal. 602. 104 Myers v. McDonald, 68 Cal. 162, 8 Pac. 809. 105 Hall v. Dwinell, 10 Wend. 628; Patton v. Blackwell, 2 Overt. 114, Fed. Cas. No. 10831. See Tacoma Nat. Bank v. Peet, 9 Wash. 222, 37 Pac. 426; State v. Second Judicial Dist. Court, 10 Mont. 456, 26 Pac. 182; Eltzroth v. Ryan, 91 Cal. 584, 27 Pac. 932. 106 Morell v. Gould, 5 Hill, 553. 107 Hanford v. MeNair, 2 Wend. 286; Bagley v. Ostrom, 5 Hill, 516. 108 Jackson v. Breese, 6 Cow. 42. Take notice, that C. D., the defendant above named, hereby demands of the plaintiff above named an inspection and copy, or permission to take copy, of that certain deed [or, other instrument. or book, describing the same with such particularity as to enable the other party to distinguish it], which said [name instrument or book] is in the possession and under control of the plaintiff, and contains evidence relating to the merits of the defense in this action. [DATE.] To A. B., Esq., Plaintiff, and E. F., Esq., his Attorney. C. D. It is hereby stipulated and agreed, that the documents hereunder described [and to which we have respectively set our names on the first and last pages thereof] shall and may be admitted and read and used as evidence at the trial of this cause; and that such of the said documents as are described as copies or extracts shall be deemed and taken to be, and shall be used as, true copies or extracts, without further proving the same; and that such copies or extracts shall and may be read in evidence as primary and the best evidence, and not as secondary evidence; and that the original documents shall not be required to be produced, or any evidence as to the same, or of the proper custody thereof, or as to the non-production of the same; and no objection shall be taken to the reading as evidence the documents so marked, saving all just exceptions to the admissibility of the originals as evidence. The following are the documents above referred to: [Describing them, and referring to a figure or letter indorsed.] [DATE.] [SIGNATURES.] Take notice, that you are hereby required to produce, on the trial of this cause, [a certain paper. Here describe the paper sought; or, if there are several, say:] the following described papers: 1. A deed bearing date of or about the . . . day of . . ., ..., 19.., and executed or purporting to be executed, between M. N. and O. P., and to convey a farm in the town of ... 2. All books of account kept by M. N. in his business at from the . . . day of . . ., 19.., to the . . . day of . . 19... and containing entries relating to dealings between M. N. and O. P. Also all other documents, letters, books, papers, and writings whatsoever, in your control, containing any entry, memorandum, or other matter in any wise relating to the matters in question in this cause. And you are hereby notified that in case of your failure to produce the said [describing the papers] the defendant will introduce secondary evidence of their contents on the trial of this action. G. H., Attorney for Defendant. [DATE.] [The most accurate description possible should be given of all documents desired.] § 1147. In justice court-Notice of trial of transferred action. Form No. 383. [TITLE.] To A. B., the plaintiff in the above entitled action, and C. D., the defendant in said action: You will please take notice, that the said action, transferred to the above-entitled court from the . . . court of the . . . township, in . . ., county of . . ., is set for trial before me, at my courtroom, in said . . . township, in said . . . county, the . . . day of ... J. P., Justice of the Peace of said . . . township. § 1148. Notice of trial and note of issue. Form No. 384. [TITLE OF COURT AND CAUSE.] Please take notice, that the above entitled action will be brought to trial at the . . . term of the aforesaid court, to be held at the courthouse in the . . . of . . ., in the said county of . . . the . . . day of . . . next, at the opening of court on that day, as soon thereafter as counsel can be heard. on or Service of a copy of above ., 19.. G. H., Defendant's Attorney. [The note of issue is usually attached to the notice of trial as follows:] NOTE OF ISSUE IN THE ABOVE-ENTITLED CAUSE. E. F., Plaintiff's Attorney. G. H., Defendant's Attorney. Issue of fact [or, law] for jury [or, court]. Joined . . ., 19.. Filed by E. F., Plaintiff's Attorney, . . ., 19.. M. N., Clerk. § 1149. Affidavit for continuance because of absence of wit nesses. Form No. 385. [TITLE OF COURT AND CAUSE.] [VENUE.] C. D., being first duly sworn, says that he is the defendant in the above-entitled action; that issue was joined therein on the . . . day of . . ., 19.., and that this defendant has a valid defense in whole in said action [or, in part, specifying which part]. That this affiant has fully and fairly stated the case to G. H., Esq., his counsel herein, who resides at . . ., in said county, and that upon the statement thus made he is advised by said counsel that he has a valid and substantial defense to said action and to the whole thereof [or, to some specific part thereof, stating what part].* That affiant has used due diligence to prepare for the trial of this action at the present term; that he caused a subpoena to be issued |