
    Sola, Plaintiff and Appellant, v. Alejandro et al., Defendants and Appellees.
    Appeal from the District Court of Ilumacao in an Action of Intervention.
    No. 2376
    Decided July 20, 1922.
    Continuance — Illness or Witness — Verified Motion. — Although a party moving for a continuance on the ground that one of the witnesses was ill, which he proved, does not do so by means of a written and verified motion as required by section 202 of the Code of Civil Procedure, the continuance should be granted if from the pleadings and the record it appears that the testimony is important and material.
    The facts are stated in the opinion.
    
      Mr. J. V endrell for the appellant.
    
      Messrs. L. Pereyó and F. Qonmles for the. appellees'.
   Me. Justice Aldeey

delivered the opinion of the court.

In execution of the judgment rendered in an action brought by Juan Alejandro against Luther R. Bostick or his heir, Abigail Bostick Alejandro, the marshal levied on four head of cattle in the possession of Juan Sola. Juan Sola filed a complaint in intervention, alleging that he was the owner of the cattle by purchase from Albert Walker. Only Juan Alejandro answered the complaint and he denied that the intervenor was or ever had been the owner of the cattle, and also that Albert Walker had ever owned them.

After a. trial of the case judgment was rendered against the intervenor, who took the present appeal.

The first ground alleged for a reversal of the judgment is that the trial court refused to grant a continuance moved for by the intervenor.

When the case was called for trial the intervenor moved for a continuance on the ground that Walker, his principal witness, was ill, and presented a certificate signed by Dr. W. F. Lippitt, dated at San Juan on the previous day and sworn to on that day before a notary of (Jaguas, to the effect that M. A. Walker was ill and unable to appear before the court of Hnmacao in response to the subpoena.

It is {rue that the granting of a continuance is discretional with the court and that according to section 202 of the Code of Civil Procedure a motion therefor must be made upon affidavit showing the materiality of the evidence and that due diligence had been used to procure it, but in this case the certificate signed and sworn to by Dr. Lippitt proved the illness of witness Walker and his inability to attend the trial at Humacao; and although it was not shown in writing and under oath that his testimony was material, this was not necessary in the present case, because it so appears from the pleadings filed by the parties, inasmuch as the intervenor bases his claim to the cattle on his purchase of them from Walker, an allegation which is denied by defendant Alejandro, who also denied that Walker was the owner of the cattle. Therefore, as the record itself discloses the importance of this witness and his inability to attend the trial, the court should have granted a continuance in the proper exercise of the discretional power conferred upon it by law.

The evidence examined at the trial showed that Walker was a material witness and that without him the intervenor could not establish his claim, for Joaquin Rojas testified that he sold the cattle to intervenor Sold under the direction of Walker, to whom he delivered the money, and who had a power of attorney from the person who had purchased them from Luther R. Bostick, the ancestor of the defendant heir whose property was levied on.

The judgment appealed from is reversed and a new trial is granted.

Reversed and remanded.

Chief Justice Del Toro and Justice Hutchison concurred.

Justices Wolf and Franco Soto took no part in the decision of this case.  