43 W. Va. 75 | W. Va. | 1897
In tlie case of the Bank of Eavenswood against A. Hamilton et al., being a. writ of error from the judgment of the Circuit Court of Jackson county in favor of the plaintiffs against the defendants upon a negotiable note for the sum of four hundred and seventy-seven dollars and forty-nine cents, the following are the only errors presented for consideration : (1) The refusal to grant a continuance on affidavit filed. (2) The trial by the court, by agreement of parties, of the matter of usuary on a statutory plea in the absence of a. formulated issue under section 6, chapter 96, Code. A motion for continuance is addressed to the sound discretion of the trial court, and, unless it plainly appears that such discretion has been abused, this Court will not interfere therewith. Marmet Co. v. Archibald, 37 Va. 778 (17 S. E. 299); Fiott v. Com., 12 Gratt. 576; Buster v. Holland, 27 W. Va. 511; Dimmy v. Railroad Co., Id. 32; Riddle v. McGinnis, 22 W. Va. 254. The amendment of a pleading at any time during the progress of a. ease is not sufficient ground for continuance unless it becomes necessary to promote the ends of justice, and secure a fair trial of the issues. The affidavit relied on is as follows, to wit: “State of West Yirginia, Jackson County, to wit: Before the undersigned authority this clay personally appeared A. Hamilton, who, being-first duly sworn, says that he is one of the defendants in the two cases pending in the Circuit Court of said county wherein the Bank of Eavenswood is the plaintiff, and in each of said actions he has in part a good defense, the extent of which defense this affiant is unable at this time to state; but to a large part of the demands sued on in said actions he lias a good and valid defense, and, if oppor
The amendment to the declaration was merely supplying the formal parts of a declaration in assumpsit in no
Affirmed.