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CHAPTER 17.

Continuance.

show.

AN ACT Relative to Continuances in Civil and Criminal Cases,

Be it enacted by the Council and House of Representatives of the Territory of Wyoming:

SECTION 1. A motion to postpone the trial of a case, in any of the courts of this Territory, on account of the absence of evidence, can be made only upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it, and where the evidence may be; and, if it is for What the affi- an absent witness, the affidavit must show where the witness davit must resides, if his residence is known to affiant, and the probabilities of procuring his testimony within a reasonable time, and that his absence has not been procured by the act or connivance of the party, nor by others at his request, nor with his knowledge or consent, and what facts he believes the witness will prove, and that he believes them to be true, and that he is unable to prove such facts by any other witness whose testimony can be as readily Admission procured. If, thereupon, the adverse party will consent that, on avoids contin- the trial, the facts stated in the affidavit shall be taken as true, if the absent evidence is written or documentary, and in case of a witness that he will testify to the facts stated in the affidavit as true, the trial shall not be postponed for that cause; and, in such case, the party against whom such evidence is used shall have the right to impeach the evidence of such absent witness, as in case where the witness is present, or his deposition is used.

uance.

Court may

good cause

SEC. 2. Any court, for good cause shown, other than the absence continue for of evidence, may continue any action at any stage of the proshown. ceedings, at the cost of the applicant, to be paid as the court shall direct.

Applies to

SEC. 3. The provisions of this act shall apply as well to criminal civil and as civil cases.

criminal

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This act shall take effect and be in force from and after

Approved, December 2, 1873.

CHAPTER 18.

AN ACT to change the name of John Jessie to John Francis Ellis, and to provide for his becoming the legal heir of Miss Marion J. Ellis.

Be it enacted by the Council and House of Representatives of the Territory of Wyoming :

SECTION 1. That the name of John Jessie, minor son of John Jessie to Augustus Jessie, late of the Fifth United States Cavalry, be, and Francis Ellis. the same is hereby changed to John Francis Ellis.

SEC. 2. That the said John Francis Ellis is hereby declared to be the lawful heir of Miss Marion J. Ellis, and as such heir, entitled to succeed to all the rights and privileges that he would if he were the natural child of said Marion J. Ellis, born in lawful wedlock, and he is hereby declared to be competent to succeed, as heir by gift, grant or devise, to the estate, real and personal, of said Marion J. Ellis.

Heir of Miss

Ellis.

.

SEC. 3. This act to take effect from and after its approval by In force. the governor.

Approved, December 2, 1873.

CHAPTER 19.

Changes of venue may be had.

When judge

AN ACT Providing for Changes of Venue in Civil and Criminal Cases.

Be it enacted by the Council and House of Representatives of the Territory of Wyoming:

SECTION 1. That the court in term, or the judge thereof in vacation, shall change the venue of any civil action upon the application of either party, made upon affidavit, stating one or more of the following causes:

First, That the judge has been engaged in [as] counsel in the has been case prior to his election or appointment as judge, or is otherwise interested in the cause; or,

counsel.

When judge is of kin.

Bias or preju

Second, That the judge is of kin to either party; or,

Third, That the person making the affidavit believes that, on dice of judge. account of the bias or prejudice or interest of the judge before whom the cause is pending, the party cannot obtain a fair trial;

When the op

posite party

or,

Fourth, That the opposite party has an undue influence over the has undue in- citizens of the county, or that an odium attaches to the applicant, or to his cause of action or defense, or on account of local preju dice; or,

fluence.

When county is a party.

When judge is a material witness.

Convenience

of witnesses.

Duty of clerk.

Fifth, When the county in which the case is pending is a party to the suit; or,

Sixth, That the judge of the court wherein such action is pending is a material witness for the applicant for such change; or,

Seventh, When the affidavit presented in support of the appli cation shall show to the satisfaction of the court that the convenience of witnesses and the ends of justice would be promoted by the change.

SEC. 2. When a change of venue is directed for any of the causes mentioned in the fourth, fifth or seventh subdivisions of the first section of this act, the judge shall send the case to the most convenient county, and the clerk of the court in which the suit is pending, shall forthwith transmit the papers and the transcripts of the proceedings in the case to the clerk of the court to which the venue is changed, the party applying [for a change] first paying the costs thereof, (which payment shall be made within ten days after the entry of the order directing the change or the change shall be deemed abandoned) and the clerk of the proper court shall receive the papers and transcripts, giving a receipt therefor, and

docket the action, in its order among the other causes of the court, May call some
and the action or suit shall stand for trial after the [at the] first other judge.
regular term thereafter, and shall be tried, or otherwise disposed of
in the same manner as if the cause had originated in that court;
and, upon directing a change of venue for any of the causes men-
tioned in the first, second, third and sixth subdivisions of the first
section of this act, the judge directing it shall call some judge of
the district or supreme court of the Territory to try said cause,
who shall try or continue the case, or change the venue thereof, as
if it had been originally brought before him.

SEC. 3. No change of venue shall be granted in vacation unless Change in va-
the opposite party has had at least fifteen (15) days' notice of cation.
the time and place when the application will be heard.

SEC. 4. Every criminal case must be tried in the county in In criminal which the indictment is found except when otherwise provided in cases. this act.

the judge.

SEC. 5. The defendant in a criminal action may make an affi- Prejudice of davit stating that he believes he cannot receive a fair trial owing to the bias or prejudice of the judge, or the excitement or prejudice against the defendant in the county, or some part thereof, and demand to be tried by disinterested triers.

call

some other

SEC. 6. When the objection in a criminal action is to the judge, shall he shall call some judge of the district or supreme court of the Ter- judge. ritory to try said action, who shall try and continue the same, or change the venue thereof, as if it had been originally brought before him.

convenient

SEC. 7. When the affidavit is founded upon excitement or prej- To the most udice in the county, against the defendant, the court shall grant a county. change of venue thereof to the most convenient county. The clerk must thereupon make a transcript of the proceedings and Clerk's duties. orders of the court in the case, and, having scaled up the same together with the original papers in the case, deliver them to the sheriff, who must, without delay, deposit them in the clerk's office of the court to which the change is made, and make returns accordingly.

attorney may

affidavits,

SEC. 8. In all cases where the defendant is indicted for an Prosecuting offense not punishable capitally, or by imprisonment for life, and controvert dewhere the defendant is in custody for want of bail and is unable defendant's to employ counsel in his defense, or where the indictment is for a when. misdemeanor only, the prosecuting attorney may controvert the defendant's affidavits by other affidavits, and the defendant may file additional affidavits in support of his application and the court, upon the hearing thereof, may grant or refuse the application; but in no other cases than those mentioned in this section shall the prosecuting attorney be permitted to controvert the affidavit of the defendant, or the court be allowed to refuse the application for the change.

Jurisdiction

which change

is directed,

complete,

SEC. 9. The jurisdiction of the court to which the change is of court to directed is complete upon the filing of original papers and transcripts in the clerk's office in that court, and the cause must be when." docketed and stand for trial at the first regular term thereafter unless continued for causes.

SEC. 10. Nothing contained in this act shall authorize the grant

Must be dock

eted, for what
term.

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One change, ing of more than one change of venue from the county, and one change of venue from the judge; to the same party in a civil case and to the defendant in a criminal action.

only, authorized.

Time of presentation not

nial.

SEC. 11. No change of venue provided for in this act shall be ground for de- devised [denied] because of the time when it is presented; Provided, It is presented before the jury is impaneled to try the case. SEC. 12. All laws and parts of laws conflicting with any of the provisions of this act are hereby repealed.

Proviso.
Repealed.

Take effect.

SEC. 13. This act shall take effect and be in force from and after its passage.

Approved, December 11, 1875.

[NOTE. This bill covers the ground embraced in Act approved Dec. 3, 1873. The wor "at the" in brackets in section two, were changed into "after the" by the enrolling cler in copying from the engrossed bill.' Vide section nine, supra.-COMPILERS.]

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