140 Ark. 356 | Ark. | 1919
On tbe 26th day of October, 1917, appellee instituted an attachment suit against appellant in tbe Poinsett Circuit Court, to recover $648.02 upon account.
Appellant answered, denying tbe indebtedness, and pleading tbe statute of frauds.
On May 6,1918, a day of tbe May term of said court, appellant filed a motion for continuance on account of the absence of a witness, E. C. Eaker, who was in tbe military service of tbe United States and absent from the State of Arkansas. A continuance was then agreed upon between the parties under a stipulation that appellant would file a cross-bond and waive all damages growing out of the attachment proceeding. The appellant complied with the stipulation, and the cause was passed until the December term, 1918, at which time appellant again asked for a continuance on account of the absence of the same witness, E. C. Eaker. On the same day, a supplemental motion for continuance was also filed. The substance of the allegations of the two motions was that E. C. Eaker was appellant’s only witness, and, if present, would testify that the appellant was not indebted to appellee ; that he, Eaker, did not buy the goods nor contract the indebtedness set forth in the complaint and itemized statement, nor authorize any one else to purchase the goods for appellant; and that no such proposition was discussed between Eaker and appellee; that the said Eaker was in the military service of the United States Government, and that his business, of lumber inspector, carried him from place to place in the United States; that Eaker was unable to get a leave of absence and attend the trial, and that diligent effort had been made to take his deposition. The motion was overruled by the court and exceptions were properly saved to the ruling by appellant.
The cause then proceeded to a hearing upon the pleadings and evidence. "When the evidence was concluded, appellant requested a peremptory instruction, and no other. The court refused the instruction over' the objection of appellant, and, on its own motion, instructed the jury to return a verdict in favor of appellees for the amount of the account, over the» objection and exception of appellant. Thereupon, the jury returned the following verdict: “We, the jury, find for the plaintiffs in the sum of $648.02, together with interest thereon from the 19th day of July, 1917, at the rate of six per cent, per annum.”
The court rendered judgment in accordance with the verdict, from which an appeal has been duly prosecuted to this court.
No error appearing in the record, the judgment is affirmed.