The Nevada journal., 1851-11-01
Ohio Tunnel Co. vs., Gold Tunnel Co.

Ohio Tunnel Co. vs.. Gold Tunnel Co.
This suit when we last noticed it, was
vibrating between Justices Dougherty's
and Scott's Offices. On Saturday, the
25.h, it was carried before Justice Scott
and the defense entered protest against
the jurisdiction of the court. This was
oyerruled, and Thursday, the 31st set
for trial On Thursday morning, Horace
Holt one Of the defense, made affidavit
that it was impossible for him to pro-
ceed to the trial on the ground that ma
terial witnesses were absent, upon whom
he depended to provo essential points
in the defense. One of these, Downey,
was suffering under an attack of sick
ness which had greatly impaired his
mental faculties, but it was probable he
would recover in few months. By
this witness the defense expected to
prove that they held the land in dis
pute, with its dips, angles, and sinuosi-
ties, before any claim was laid by the
Ohio company. The af6ant also was
unable to proceed to trial because of the
absense Of Stephen R. Shuder, of Liberty
Missouri, and -- Savage of Syra-
cuse, N. Y. by whom material points
in the defense could be shown, and
which could be proved by no other
witnesses in the defense. Therefore,
they asked for an adjournment Of the
case for three months.
The counsel for the plaintiffs deemed
it strange that this postponement had
not been made at an earlier stage Of the
proceedings. The defense had already
procured one adjournment and that was
all the law allowed, They thought the
application should not be needed, but if
the court granted the request, the costs
in consequence should be laid ON the
party seeking adjournment. But if the
witnesses were in court, or the points
to be proven by them we're admitted,
it could have no bearing in the case.
This was suit for forcible entry and
detainer, and the law gave a man no
power to take even his own property by
force, but only by legal process. There
was no probability either that the wit
nesses in question could be brought into
court at the end Of ninety days, and as
further postponement was out of the
power Of the court, the absense Of these
witnesses was no reason for tho delay.
The defense held that the case had
commenced de nouo before Justice Scott
that what the plaintiffs considered u
postponement was merely the act Of the
Justice in fixing a day of trial, that this
was their first application for the post
ponement, and the law made it obliga-
tory in the Justice to adjourn the case
for period not exceeding three months.
when due affidavit and bond were filed.
The prosecution had come into court
with evidence carefully collected-their
case ready for advantageous presentment,
while from the nature of the case, the
defense were compelled to appear with
out opportunity to collect their witnes-
ses and arrange their side of the case
with sufficient accuracy to make the
battle even, and secure justice. There
was too much at stake for them to allow
the case to 60 to trial without fair
opportunity to send for witnesses, and
present their case in proper manner.
The counsel for the defense did not
doubt that two of the witnesses could
be produced at the end of ninety days.
The court ordered the postponement,
and the defendants gave bonds to pay
costs to which plaintiffs might be sub
jected by the adjournment, provided
such costs should be adjudged against
them.
Thus this case, which has enlisted 80
much attention from the magnitude OF
the interests involved, and its prdspec-
tive bealing upon other claims, is put
off for three months longer The in
junction, however upon the Gold TIM
mel company holds good, and we do not
see that it can be set aside. 1t seems
highly proper to grant either party time
for the production of material witnesses
and to secure Justice to itselfby proper
presentation of their side Of the oues-
tion; yet there is nothing more produc-
tive of pernicious results in California
litigation, than long delays, where wits
nesses are never at hand long after the
commencement or suit, and the