WILLIAM P. PASTORIUS, PLAINTIFF IN ERROR,
v.
E. J. W. WHIDBY, DOING BUSINESS UNDER NAME OF SOUTHERN PACKING COMPANY, DEFENDANT IN ERROR
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The Florida Supreme Court affirmed a judgment for the plaintiff in a case involving a sale of tomatoes, upholding the trial court's denial of a continuance and finding no error in allowing plaintiff's counsel to testify.
Yes, the denial of the continuance was proper because the affidavit was defective and the witness's testimony would not have been valuable. No, the fact that the plaintiff's counsel testified did not provide grounds for reversing the judgment.
“The affidavit for continuance is defective in that it does not state how or where the information was obtained by affiant as to what the absent witness would testify.”
Reasoning for denying the motion for continuance.
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Whitfield J.
In an action on common counts against Pastorius for 480 crates of tomatoes sold to him, he pleaded never was indebted and also a special plea of counterclaim. A motion for continuance made on the ground-of an absent material witness was denied. At the trial an attorney for the plaintiff testified' as to an interview he had with the defendant with reference to the plaintiff’s claim. Verdict and. judgment were rendered for the plaintiff and defendant took writ of error. The affidavit for continuance is defective in that it does not state how or where the information was obtained by affiant as to what the absent witness would testify. Moore v. State, 59 Fla. 23, 52 South. Rep. 971; Stinson v. State, decided at this term. An affidavit of the absent witness filed on the motion for new trial showed that the testimony of such witness would have been of no value in. the trial, therefore no harm resulted in denying the motion for a continuance.
The fact that the counsel for the plaintiff testified in the case gives the defendant no ground for reversing the judgment.
Judgment affirmed.
All concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Griswold v. State, 77 Fla. 505 (Fla. 1919)…sufficient to justify the order of continuance. The showing made failed to come up to the standard required in such cases in several particulars pointed out in counsel’s brief. See Moore v. State, 59 Fla. 23, 52 South. Rep. 971; Pastorius v. Whidby, 76 Fla. 571, 80 South. Rep. 513. But as this showing was not made to this court upon the hearing in the habeas corpus case, we were left to the presumption that the order was correctly made. The petition contained a reference to the motion and stated that a cop…
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Dupree v. State, 125 Fla. 58 (Fla. 1936)…sence of the witness. Therefore, the motion was technically insufficient as a motion for continuance. Moore v. State, 59 Fla. 23, 52 Sou. 971; Brown v. State, 92 Fla. 699, 109 So. 811; Whitman v. State, 97 Fla. 988, 122 So. 567; Pastorius v. Whidby, 76 Fla. 571, 80 So. 513. A motion, however, for a postponement of the day of trial to a later day in the term is not required to meet as rigid a [*60] test as is a motion for a continuance. But in this case the motion for postponement and the proof in support…
Authorities Cited
- Moore v. State, 59 Fla. 23 (Fla. 1910)