#### McFarland and another, Respondents, vs. Zahl, Appellant.

*January 13*

February *1, 1910.*

*Continuance: Absence of ivitness: New trial: Discretion.*

Denial of a motion for a continuance because of the absence of a material -witness, and subsequent refusal to set aside the judgment and grant a new trial, are *held,*to have been justified upon conflicting affidavits respecting the grounds alleged and the good faith of the moving party.

Appeal from a judgment of the circuit court for .Wood 'County: Ohas. M. Webb, Circuit Judge.

*Affirmed.*

This is an action to collect the commission of the plaintiffs ■as real-estate brokers for negotiating and consummating the sale of a certain parcel of real estate which belonged to the defendant. The complaint alleges that on October 1, 1906, the plaintiffs had the premises listed with them by the defendant, the agreement being that the plaintiffs were to have whatever they might procure for the land in excess of $8,400. It *512is alleged that the plaintiffs advertised the land, procured abstracts, secured and brought many would-be purchasers to look over the land, and that they expended money and time in carrying out their contract. ’ Plaintiffs allege that they informed the defendant that the land was worth more than he asked for it, and that the price for which the land was to be sold was thereupon fixed at $12,000, and if the plaintiffs effected a sale’ thereof they were to receive a commission of five per centum. It is alleged that they succeeded in making the sale and that they bring this action to recover their commission.

The action was commenced in Langlade county and issue was joined on June 22, 1907. The action was duly noticed for trial in Langlade county and was called for trial at the-November term of the court in 1907, but the defendant filed an affidavit of prejudice and the case was thereupon removed to the circuit court for Wood county. The case was noticed for trial at the May term in 1908 of the Wood county circuit court, but the defendant procured an affidavit from a physician stating that his wife was likely to be confined during the week during which the case would be tried and that he could not safely leave her. The plaintiffs’ attorney thereupon consented to a continuance of the case, relying on the truth of the affidavit. He now states that he afterwards learned that the defendant’s wife was not confined until two months later. On September 21, 1908, notice of trial was given for the term, of the court to be held on October 5, 1908. On the first day of the term the defendant moved for a continuance until the next regular term of the court, and presented an affidavit in .which he averred that a witness whose presence was indispensable for his defense was absent from the state and could not be secured for that term of court. A counter affidavit was presented averring that the witness was then within the-city of Antigo and within reach of a subpoena. The court reserved its ruling on the motion. When the case was reached on the day calendar of October 8, 1908, the motion was renewed upon affidavits then presented to the effect that the *513missing witness bad for some time previous been in tbe northern part of tbe state; that bis whereabouts were unknown; that be could not be found; and that tbe defendant bad not aided tbe witness to evade tbe service of tbe subpoena. Counter affidavits were offered to tbe effect that the missing witness bad been seen in tbe city of Antigo by several persons a number of times during tbe preceding week or ten days. Tbe court denied tbe defendant’s motion and also a motion to place tbe case at tbe foot of tbe calendar. Tbe trial then proceeded. Tbe plaintiffs presented evidence tending to sustain tbe allegations of the' complaint, and on tbe evening of October 8, 1908, rested their case. Tbe court took a recess until 9 o’clock tbe following morning, when tbe attorney for tbe defense stated that be bad not beard from bis client and that no defense could be made by evi dence. Tbe court then granted a motion for direction of a verdict in plaintiffs’ favor. On January 23, 1909, judgment was entered upon tbe verdict so directed.

On April 17, 1909, tbe defendant’s attorney moved tbe court to set aside tbe judgment and to grant a new trial upon tbe record. He presented defendant’s affidavit to tbe effect that be bad endeavored to have tbe missing witness subpoenaed for tbe trial; that be bad presented tbe subpoena to tbe sheriff of Langlade county with instructions to serve it; and that be bad not advised or aided tbe missing witness to evade the service of tbe subpoena. Tbe affidavit also states that the defendant bad attempted to leave Antigo on tbe morning of October 8, 1908, and that *en route*to Grand Rapids, tbe place of tbe trial of tbe action, be and bis attorney were to prepare an affidavit for use on bis motion for a continuance of tbe action, but that owing to tbe incorrectness of bis timepiece be missed tbe train; and that be asked bis attorney by telegram whether be should come to Grand Rapids, but that be did not receive a reply until tbe next morning, too late for him to be present at tbe trial.

An affidavit of tbe missing witness was also presented to tbe *514effect that while be was present at bis boarding bouse on tbe evening of October 5, 1908, when tbe marshal of tbe city of Antigo and another man came there, be overheard that the defendant bad bad a search-warrant issued for him, and that be ran out of tbe back door and avoided the sendee of tbe subpoena because his attendance at tbe trial at that time would interfere with bis business. Tbe affidavit also states that tbe defendant bad not asked him to avoid tbe service of tbe subpoena.

Other affidavits in defendant’s behalf were presented tending to deny tbe plaintiffs’ claims for opposing tbe continuance of tbe case.

Tbe sheriff of Langlade county made affidavit that when the defendant placed in bis bands tbe subpoena for tbe missing witness be left with him no witness fees or any *per diem*to be paid or tendered to the witness, and that when requested so to do be asserted that be would settle with tbe witness. He also called twice at tbe boarding, place of tbe witness, and be states that tbe residents of tbe bouse seemed to know bis errand without having been told by him.

Tbe marshal of tbe city of Antigo made affidavit that be overtook tbe missing witness when be left bis boarding bouse on October 5, 1908, and that tbe witness gave him to understand that the defendant was anxious that tbe missing witness should not be found, and that it would mean more money to tbe marshal if be would not serve a subpoena on him.

These and other affidavits presented state that tbe reputations of tbe defendant and of tbe missing witness for truth and veracity are bad and that they could not be believed under oath.

At tbe conclusion of tbe argument on the motions to set aside tbe judgment and to grant a new trial tbe court denied tbe motions, with costs.

This is an appeal from tbe judgment and from the order of tbe court denying tbe continuance.

*515
      *Geo. W. Latta,*for tbe appellant.

*T. W. Hogan,*for the respondents.

Siebecker, J.

Erom the foregoing statement it is manifest that the facts presented in the affidavits of the respective parties raised a sharp issue of fact respecting the grounds alleged and the good faith of the defendant in mating the application for a continuance of the ease on the first day of the term of the court at which the case was noticed for trial, and on the renewal thereof, when the case was reached on the trial calendar, as well as on the application for a new trial. An attentive perusal of the affidavits in connection with the facts and circumstances disclosed by the record in the case leads us to the conclusion that the trial court was justified in refusing the application for a continuance and in denying defendant’s motion for a new trial.

*By the Court.*— Judgment affirmed.