The news & observer., 1905-05-12
Motion Allowed Defense
For Absent Witnesses.
SPECIAL TERM JUNE IL
Judge Moore Applies to Governor Who
Advises Term and Commissions
Judge Moore to Hold It---The
Argument On the Motion
Warm at Times.

WdTtu dt tHhSSs
The action for damages for libel
brought by Rev. r. ]. Gattis, super
annuated Methodist minister, against
DR.. John c. Kilgo president of
Trinity College, and b. N. Duke, mill
lionaire and American Tobacco Com
pany magnate, was continued in
Wake County Court yesterday on mo-
ton of the defense, supported by
affidavit of DR.. Kilgo, In which he
averred that he could not safely go
to trial i'm the absence of Mr.. w. r.
Odell and DR.. Dred Peacock, un-
avoidably detained
The affidavit recounted that both
witnesses were under subpoena to this
court; that Mr.. Odell was in attend
ance on the Superior Court of Cabar-
rus County in a cause in which he
was a party and that his wife was too
sick for him to leave home; that DR..
Peacock was suffering from nervous
prostration and was at High Point
sick and too i'll to leave.
The affidavit further stated that
the defense expected to prove by
these witnesses that the publication
alleged as libellous in the complaint
was the act and authorized by the
Board of Trustees of Trinity College,
and that it was made without malice
towards the defendant. Also that
the defense intended to introduce GER
tain testimony of DR.. Peacock with
reference to q conversation had by
him with the plaintiff Gattis, as set
forth in the report of the investiga-
ton of the Clark charges against DIR.
Kilgo had by the Trustees Of Trinity
College in 1898, and reproduced be-
low.
After argument by Mr.. ]. Fl. Pou,
in support of the motion, and by ex-
Judge A. w. Graham, of Oxford, in
opposition, Judge Moore stated that
he would grant the motion for the
term. but that considering the i'm
portance of securing an early trial of
the case, and in view Of the congest-
ed condition of the Wake County
docket, he would certify to Governor
Glenn, under the provisions of the
statute, the need of a special term of
court for the county, at which the
case might be heard.
Judge Moore also stated that he
would be willing to come to Raleigh
to hear the case, If the term could be
arranged for a time that would not
conflict with his court appointments,
and suggested Monday, May 22nd, as
the time for which the court should
be called.
On objection of counsel that Trinity
commencement would be held the
first week i'm June so as to conflict
with the term, if it convened at that
time, it was finally agreed that coun-
sci should get together confer with
the judge and suggest the time for
which the Governor should call the
court and the case was continued, in
accordance with the motion OF the
defense.
Later in the day Judge Moore made
the certificate and presented 1t to the
Governor, who ordered the special
term for June 18th, Judge Moore to
preside.
The affidavit for continuance, with
the extracts from the record OF the
Trinity College investigation referred
to therein and embodying the testi-
mony of DR.. Peacock, are as follows:
DR.. Kilgo's AfidaVit.
North Carolina-W WakeCounty
April Term, 1905,
In the Superior Court.
T. ]. Gattis VS.. j. G.. Kilgo, ct al
John G. Kilgo. one of the defend
ants, being duly sworn, says that the
defendant cannot safely come to trial
at this term for the following reasons.
w. r. Odell, one of the witnesses for
the defendant. is himself engaged in
court at Concord in a case to which he
is a party and his wife is quite sick
and he is unable to leave her. De-
PENDANTS expect to prove by said Odell
that the publication in question was
made by the trustees Of Trinity Col
lege and not by the defendants indi-
vidually, and that he, as one Of them.
believed the same to be true and pub
lished the same without any malice.
Said Odell was duly subpoenaed to at
tend this court and information of his
necessary absence was received only
this morning. Said Odell was originally
party to this cause and has hereto
fore attended every jury trial OF the
cause.
Second: Defendants expect to prove
substantially the same facts by DR..
Dred Peacock and the further facts
as testified to by the said Peacock dur
ing the Trinity investigation and con-
tanned in the exhibits herein on pages
137-138. Said Peacock has been duly
subpoenaed and in attendance in this
cause. Affiant is informed that he has
nervous prostration and is at High
Point and unable to attend this court.
Affiant expects to have the benefit Of
their testimony at another term Of
this court; that defendants have used
due diligence to be ready for trial and
this application is not made for pur-
pose Of delay, but for the causes here
in set forth.
(Signed) JOHN G. KILGO.
Verified 11th day Of May, 1905 by
Virtruvius Royster, Deputy g. 5. G.
DR.. Peacock i'm Trinity Investigation.
The evidence OF the witness Pea
fqe--