40 Ind. App. 77 | Ind. Ct. App. | 1907
Appellee, plaintiff below, brought this action against the appellant to recover possession of real estate and damages for the wrongful detention thereof. The action was brought before a justice of the peace, and judgment rendered for appellee, from which judgment an appeal was taken to the Superior Court of Vanderburgh County, then by a change of venue to the Warrick Circuit Court, where the case was submitted to a jury. The jury returned a ver
The appellant assigns' as error the action of the court in overruling appellant’s motion for a new trial and the overruling of appellant’s motion for a continuance. The reasons for a new trial are that the court refused to grant a continuance in the trial of said cause, that the verdict is not sustained by sufficient evidence, and that the verdict is contrary to law.
We think it follows that the trial court erred in refusing a continuance only on account of those portions of the affidavit which set forth the necessity for the defendant’s presence at the trial and her inability to be present. It is shown that the appellant was an old woman, unable to walk, and wholly unable to go or be taken to Boonville (the seat of justice), and unable to be in court to testify, and that her nervous system was so broken that it would be impossible for her to give an intelligent deposition, even if taken quietly in ’ her home; that it was probable that within a month she would be able to give her deposition. The affidavits thus
While prior applications were made for a continuance, the ground or grounds of such applications did not appear. “An examination of the affidavits in connection with the entire record convinces us that in the exercise of a proper judicial discretion the court below should have continued
Judgment reversed, with instructions to sustain the motion for a new trial.