No continuance shall be allowed in any court on account of the absence of a witness or for the purpose of procuring testimony when the opposite party is willing to admit and does not contest the truth of the facts expected to be proved by the testimony of the witness. The court shall order the admission to be reduced to writing.
(Ga. L. 1853-54, p. 52, § 1; Code 1863, § 3452; Code 1868, § 3472; Code 1873, § 3523; Code 1882, § 3523; Civil Code 1895, § 5130; Penal Code 1895, § 963; Civil Code 1910, § 5716; Penal Code 1910, § 989; Code 1933, § 81-1411.)
Cross references.- Corresponding provision relating to criminal procedure, § 17-8-32.
JUDICIAL DECISIONS
Admission by opposite party must be reduced to writing.
- An admission that the absent witness would testify to the facts stated is not sufficient to prevent a continuance; the opposite party must also admit in writing that the party does not contest the truth thereto. Cheney v. Smith & Alexander, 42 Ga. 50 (1871); Klugman v. Gammell, 43 Ga. 581 (1871).
Admission cannot be withdrawn after formerly absent witness comes into court.
- When a party admits the truth of facts to which an absent witness will testify, the admission being made to avoid a continuance under this section, the party has no right, after the opposite party has closed the evidence, to withdraw the admission because the witness is no longer absent but has come into court. Harris & Mitchell v. McArthur, 90 Ga. 216, 15 S.E. 758 (1892) (see O.C.G.A. § 9-10-161).
Cited in Baldwin v. Walden, 30 Ga. 829 (1860); Kitchens v. Hutchins, 44 Ga. 620 (1872).
RESEARCH REFERENCES
Am. Jur. 2d.
- 17 Am. Jur. 2d, Continuance, § 41 et seq.
C.J.S.- 17 C.J.S., Continuances, §§ 62, 72.
ALR.- Admissions to prevent continuance sought to secure testimony of absent witness in civil case, 15 A.L.R.3d 1272.