
    Cole v. Strafford et al.
    
    1. Deposition : diligence. A commission issued in December, 1869, to take the deposition of a witness residing in Oregon. At the time of the trial in June, 1860, no return had been made, and no further steps Rad been taken to secure liis evidence. Held, that the showing of diligence was not sufficient to entitle the party suing out the commission, to a continuance.
    
      Appeal from Fayette District Court.
    
    Tuesday, December 3.
    The facts are stated in tbe opinion of the court.
    
      L. L. Ainsworth for the appellant,
    relied upon Purington v. Frank, 2 Iowa 565; Welsh v. Savery, 4 lb. 241; The State of Iowa v. Cox, 10 lb. 351.
    No appearance for the appellee.
   Baldwin, J.

The District Court overruled an application of defendants for a continuance, and from this the defendants appeal. A commission had been issued by defendants to take the deposition of a certain witness residing in Oregon. This was issued in December, 1859, and no return had been made up to the time of trial in June, 1860. The court in its discretion held this was not a sufficient showing of diligence to obtain the testimony of defendants’ witness. We are unable to discover any abuse of the discretion reposed in the District Court, in this ruling, the defendants having failed to show any steps taken to procure a second commission in this interval of time.

Affirmed.  