Sidebilder
PDF
ePub
[ocr errors]
[ocr errors]
[ocr errors]

herein on the . . . day of 19.., for service on L. M. and O. P. [or, otherwise, state what efforts were made to procure the attendance of the witnesses]; that the sheriff of said county, to whom said subpoena was on that day delivered, informs this affiant that said M. N. and said O. P. are now absent from this state and somewhere in state of . having left this state about 19..; that their residence in this state is the town of . . county of..., and defendant has made inquiry in the neighborhood of their residence, and is informed that they are temporarily absent, but not expected to return for about . . . months.** That said M. N. and O. P. are necessary and material witnesses, without whose testimony he cannot safely proceed to trial; and that no other evidence is at hand, nor witness nor witnesses in attendance or known to him, whose testimony could have been procured in time, upon whom he can safely rely to prove the particular facts that he expects to prove, and believes can be proved, by such absent witnesses above named, to maintain the issue in respect thereto on his part.

That after fully and fairly stating to his said counsel the facts which he expects to prove by said absent witnesses, he is advised by his said counsel, and verily believes, that he cannot safely go to trial without the testimony of each of them.

That neither of said witnesses is absent by this affiant's consent, connivance, or procurement; that they left without his knowledge; and soon after the joining of issue herein, each of them told this affiant personally that he expected to be in . . . county when the . . . term of this court should be held, and for that reason this affiant took no steps to procure their depositions to be used on the trial hereof.

Affiant further says that he expects to prove by said M. N. the following facts, viz.: [here state facts]; and by said O. P. the following facts: [state same].

That the grounds of his expectation that he can prove such facts by said witnesses are as follows: [State grounds; as, for instance, that each of said witnesses has stated to affiant that they could and would testify to said facts, or otherwise according to the fact.]

Affiant further says that if a continuance of the trial of this action [or, a postponement of the trial until . . ., 19..] be granted he will be able, as he believes and intends, to procure the attendance of said witnesses [or, will take the depositions of said witnesses for use on the trial].

[JURAT.]

C. D.

§ 1150. The same-For unexpected absence or illness of wit

ness.

Form No. 386.

[Proceed as in last preceding form, substituting between (*) and (**) the following:]

That affiant has used due diligence to prepare for the trial of this action at the present term; that he expected to call as a witness on said trial one M. N., and that, two weeks before the first day of the present term affiant went to the residence of said witness, in the town of . . ., in the county of . . ., for the purpose of subpœnaing him to attend as a witness in said action, at said circuit; that he there learned that said witness had unexpectedly left home the day before, in order to go to the state of . . ., and intended to remain there about two months; and deponent further says, he had no knowledge that said witness was going to be absent from home, until he learned it when he went to subpœna said witness, as aforesaid.

[Or, That one M. N., who resides at . . ., was, on the . . . day of . . ., duly subpoenaed to attend the trial of this action; but that since the service of the said subpoena he has become seriously ill, and is now wholly unable to attend this court, or be present at the trial of this action in its order on the calendar. But deponent has been informed by R. S., the physician attending the said witness, and verily believes, that the said witness will be able to attend this court by the time of the next circuit, appointed to be held at, etc.]

[Make such incidental changes in the other statements of the preceding form as are necessary.]

§ 1151. Affidavit for continuance because of absence of documentary evidence.

Form No. 387.

[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].

[ocr errors]

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 the whole thereof [or, to some specific part thereof, stating what part].*

That there are in existence certain books [or, documents, describing them-e. g. consisting of the business account-books kept by the plaintiff in his business during the year 19..] without examination and production of which upon the trial affiant cannot safely proceed to the trial of this cause, as he is advised and verily believes, after fully and fairly stating to his said counsel the facts which he expects to prove by said books [or, documents].

That said books [or, documents] are now, as he is informed and verily believes, [state where and in whose custody they are believed to be]; that they are not absent by the affiant's procurement, consent, or connivance; that up to the . . . day of . . ., 19.., said books were [state where], and could have been produced here upon the trial of this case, and affiant relied upon such fact, and was not informed of their removal, nor did he learn thereof until the... day of . . ., 19.., when it was too late to secure their return; that said books [or, documents] contain entries made by the plaintiff showing credits for money paid by defendant to the plaintiff upon the cause of action stated in the complaint [or, otherwise, state the nature and contents of the books or documents]; and that affiant expects to prove thereby [here state the facts, to be proven fully]; that the grounds of his expectation that he can prove such facts by said books are as follows: [Here state grounds.]

That the affiant has used his best exertions to procure the presence of said books upon the trial; that he [here state what efforts were used, as by giving notice to produce or otherwise, or, if the opposing party gave assurance of their production, state the fact.]

That if a continuance of the trial of this cause be granted, affiant will be able to produce said books at the next term of this court, or will be able to prove their contents by the taking of depositions. [JURAT.] A. B.

$1152. Affidavit for continuance because of sickness of sole counsel.

Form No. 388.

[Proceed as in last preceding form to the (*).] That affiant has used due diligence to prepare for the trial of this case at the present term. [State diligence used.] That G. H., Esq., was and is his sole counsel in the case, and is the only attorney conversant with the facts of the case, and that said G. H. was fully prepared and was relied upon by affiant to try said case at this term, but that on or about the . . . day of . . ., 19.., said G. H. was taken seriously ill, and has been ever since that time, and now is, very ill, and most of the time is in a delirious condition, and that all conversation. with him upon business matters has been prohibited by the physician in charge of the case.

That said G. H. has possession of all of the papers in said case, including [here state, if there are any, important documents and their nature], and that it is, and has been, impossible for any other attorney to become cognizant of the facts of said case and to prepare for trial thereof at this term, because of the condition of the said G. H., and because of the complexity of the case and the many questions involved. That said case involves [here state facts at length, showing any peculiar difficulty or complexity in the case and other material facts tending to show impossibility of another attorney being able to prepare for the trial].

That said G. H. is now improving in health, and that affiant fully believes that if a postponement of the trial of this case be granted, said G. H. will be able to try the same at the next term, and that if this should be impossible, affiant will be able to procure, and will procure, another attorney to try said cause.

[blocks in formation]

Now comes the defendant in the above-entitled action and moves the court to continue the trial thereof to the next term of this court [or, to some stated time later in the term], upon the affidavit of C. D., attached hereto and made a part hereof.

[Attach affidavit.]

Attorney for Defendant.

§ 1154. Order continuing or postponing trial.

[TITLE.]

Form No. 390.

On reading and filing the affidavit of C. D., and on motion of O. P., of counsel for . . ., and L. M., of counsel for

one appearing] in opposition:

..., [or, no Ordered, that the trial of this action be postponed until the . . . instant, on the payment within three days from date of ten dollars costs [or, to the . . . term of this court, on the payment of costs of the present term, to be taxed instanter]; and [here state other terms, if any, imposed; such as, on the defendant's consenting that the testimony of M. N. be taken conditionally before S. T., referee, on . . . days' notice].

[DATE.]

By the Court:

J. K., Judge.

« ForrigeFortsett »