Western Kansas world. [volume] (WaKeeney, Kan.) 1885-current, 1897-05-01

eAcepUlon>- OFdnIlnS. however. InaU
the motion was in fact verified before
it was presented to the contest court
ana Overruled. as stated in the oral
argument of counsel for the plaintiff
in error. this court still fails to find
in the refusal to grant the motion
sufficient grounds for reversal of
the case. In its opinions in the case
of Board of Regents vs.. LinScott. 3Oth
Kansas. 240. the court said: Grant
ing or refusing continuance is so
| largely within the discretion of the
trial court. that its ruling in the mat
ter Will always be sustained unless it
appears that such court has abused
its discretion or mistaken some we'll
settled principle of law. Applying
that rule to this case it is not hard to
discover grounds on which the mo-
tion might have been granted. but
there appears to be none which abso-
lutely required such action. great
portion of the motion refers to the
inability of the conteStee to meet the
new issues rendered by the amended
statement. 1t is sufficient to say
that some of those issues were decid-
ed adversely to him. therefore. addi-
tiOnal time to prepare defense
against them would have awaited him
nothing. The remainder of the mo-
ton referred principally to the abb
Sence of Adam Pfeifer. Alfred f.
Bailey and G.. E. Baker. witnesses.
whose testimony the conteStee stated
lie desired to procure. The reason
given for his failure to previously Sc
cure this testimony was that he had
supposed that the case would be dis
missed according to the stipulation
already mentioned until court met on
the I'd day of January. How strongly
he had relied on the idea S.Ould have
then been better judged by the con-
test court with all the parties before
it, and after hearing all of the mo-
tionS already referred to, than by this
court at this time. At any rate the
stipulation was permitted to be with
drawn and the motion to dismiss the
case Overruled on the ID day of .Janua-
nv. The motion for Il continuance
was not made until three days later.
Ample time to procure the attend
ance of Pfeitfer. who was resident
of Trego county, had interviewed and
no subpoena had been issued for that
purpose That fact alone eliminated
from the case all question of error in
refusing the continuance because of
his absence. The motion so far as it
applies to the absence of Baker and
Bailey was defective in several par
ticulars. In the first place it failed
to state the facts that the absent
witnesses would testify to, if present,
in the same full and complete man.
ner in which such facts should be
stated in a deposition, but stated in
stead the ultimate conclusions to be
drawn from such facts. Such an affi-
davit has been held insufficient in the
following cases: Payne VS.. National
Bank. 10th Kansas, 141, Board of Re-
gents VS.. LinScOtt, 30tn id. 260, ClOuS-
ton VS.. Gray, 18th id. 81. Again it
failed to show that the same facts
which these witnesses would testify
to could not be proven by other teSti-
mony- (See Board of Regents VS.. Lin
scott Supra.), and, when we consider
that the answer of the contestee had
not yet been filed, it may be ques-
toned whether the unexplained
statement contained In the motion
that 1.-The testimony is material evil
dence without which the contestee
cannot safely proceed to trial. was
sufficient showing as to it's materiali-
ty. (SwenSOn VS.. Aultman, 18th Kan
sas, 273, ST. Louis w. & w. r. r.
Co. VS.. Ransom, 29th id. 299.) Final
ly, the time of postponement prayed
for exceeds that which would have
been required to secure the deposi-
tions of Baker and bailey by the exer-
else of proper diligence. Had the
cOnteStec when his motion to dismiss
for want of jurisdiction was overruled
on January I'd, given a four days no
tice to take their dispositions he
might, by ordinary course of mail,
have had them on file at the time for
opening on January 18th. Instead of
so doing, the time until January 9Th,
was consumed in the consideration of
the numerous motions and demurrers
already referred to, and then he asked
a continuance for at least ten days
from that date, or beyond the time
for the commencement of the term
of the office involved. The contest
court was given the alternative of
either allowing the continuance as
asked for, or overruling the motion.
1t chose the latter and this court can
not say that it abused its discretion
by so doing.
After the motion above referred
to had been disposed of, the con-
testee filed an answer denying the
charges laid in the conteStor's state
ment, reiterating his plea to the jur-
iSdictiOn of the court, charging that
Alfred S. Bailey, G.. E. Baker and AL
bert Christensen had illegally voted
for Barclay, and that the confession
had forfeited any rights to the Office
by failing, within thirty days after
the election, to make and file in the
office of the county clerk detailed
statement of his expenses in attempt
ing to secure his election. An amend
rnant was aftprxvnr6S made tn tho an