John Edwards v. Daniel Drew and Isaac Newton, 2 E.D. Smith 55

By the Court. Ingraham, First J. If the attorney for the defendants had made the application to the justice, for an adjournment, on an affidavit stating the reasons which he now gives in his argument, the justice should have granted it. But the affidavit was not made, and the adjournment was moved for on a mere statement that the attorney had been unable to see the defendants since the last adjournment. This was no ground for granting it.

It did not even appear that he had made the attempt to do so; on the contrary, both the attorney and his client knew the cause was adjourned to the next day, and should have used proper diligence to prepare for the trial. Besides this, the defendants’ attorney took

part in the trial. He cross examined the witnesses, objected to evidence, and other matters, which prevent this court from interfering under those provisions which give relief where judgment is obtained by default. It may be a hard case for the defendants to be thus deprived of their defence. The fault, however, is in the law, which gives this court no power to interfere in such cases. The judgment must be affirmed.