Daily capital journal. (Salem, Oregon) 1903-1919, 1911-12-04

fendant should be finally settled, and
that the entire cost Of any such litl-
CATION should be deducted from the
amount which was to be paid to
plaintiff.
The court overruled the motion and
called the case of trial Both parties
waived jury and there was finding
for plaintiff for the full amount of his
claim, the defendant introducing no
testimony. Defendant appeals.
Mcbride, ]. The granting or refus-
ing motion for continuance Is
matter addressed to the sound discre-
tion of the court, and will not be re-
viewed upon appeal unless 1t appears
that such discretion has been abused;
State V. Huffman, 80 Or. As; State v.
Finch, 81 Or. As,
We are not prepared to say that the
court abused its discretion In this
| case. The cause had been pending
about four months and defendant had
all that time within which to have
taken the depositions Of the absent
witnesses: l.. o. l.. Sec. 1886. The
affidayts show no ground for the be-
lief expressed therein, that the de-
fendant will be able to prove the facts
recited in the ffidayits by the tes-
timony of the witnesses They do not
show that the affiants have ever con
yersed with Hart or ODonnell or re-
celyed letters from them indicating
that they will testify as stated; and
they entirely fail to state any ground
upon which afflants base their expec-
tation that the absent witnesses, II
present, would testify az stated theNe-
in. 1t Is not alleged that thetse Wit
nesses have ever stated to anybody
either orally or in writing, that they
will so testify and the court Is left
TO determine without evidence, whe-
ther or not affiants' belief as to what
can be established by them Is founded
upOn information or in mere matter
of conjecture or gues5work There
are many things indicating that the
motion was part Of a systematic
plan To delay the trial Of the action
A dllatOry motion had been filed, With
, drawn and another substituted, ana
finally suit was begun by another
CORPORATION, holding a large block OF
. the stock OF defendant and being the
, holder Of It's bonds. but having th'
same attorneys as defendant, TO en1oI
a.. the prosecution Of this action. Th'
, circuit Judge, whose opportunities u
Judge the situation accurately "er'
better than ours, probably conclude'
r that the continuance was not sough
in the interests Of justice, and we DE
/, cline TO interfere with his determine
VI ton OF the action.
y II is contended that the court ere
u in oyerrullng defendants motion I
II make the complaint more definite an
% certain. II appears from the tran
W srIpt that the court allowed the me
II uon. in so far as II required plaintli
le IA state the names OF the officers acl
~ ing In behalf Of the defendant In mai
i ing the promises and agreements vii
20 regpect to the escrow, and the promis
< on the part Of the defendant compan
~ 10 pay the $4,000 but denied It In a
ID other particuars None Of these al
at near 10 as TO be vital In regard
nj The claim OF plaintiff 10 be able
r. meet lntelligently every allegation
en- the complaint not only by denials b
Mt by an affirmative defense when nece
d. sary The granting or refusing m
", ton to make definite and certain
lif largely matter Of discretion with q
er circuit court and the appellate cou
lst should not interfere with the exerci
81 OF that discretion unless It Is satlsfi
Ie- that II has been abused, and we a