78 Neb. 792 | Neb. | 1907
This is an appeal from a judgment in favor of the plaintiffs in an action on a quantum meruit for services rendered. The answer alleges that the services were rendered in pursuance to an oral contract, whereby the compensation therefor was fixed at a specific amount, namely $25, and that a tender of that amount had been made to the plaintiffs for the said sendees. The reply is a general denial. The case was set down for the first jury trial at the January term, 1906, of the district court, and under such assignment stood for trial on the 5th day of February of that year. On the day set for the trial of the case, a motion for a continuance over the term Avas filed on behalf of the defendant on the ground that he was a material witness in his own behalf, and it was impossible
The motion for a continuance was properly overruled. It was for a continuance over the term. While either affidavit shows a state of facts which would have warranted the court postponing the trial to a later day of the term, neither of them shows a state of facts which would have warranted the court in continuing the case over the term, because neither shows that there was anything which-would have prevented the defendant from being in attendance at a later day. In his own letter, which is incorporated into the affidavit filed in support of his motion for a continuance, he does not say that he cannot attend at any time during the term, but merely that he is unable to attend “at this time.” The affidavits are defective at least in one respect. While they both refer to the express oral contract relied upon as a defense to the action, and both aver that the defendant is the only witness in his own behalf, except the plaintiffs, by whom the said contract could be proved, neither of them contain any averment to the effect that, if present in court, the defendant would testify to the facts necessary to establish such contract. In fact, such averment seems to have been studiously omitted. As the presence of the defendant, according to these affidavits, was required only for the
It is recommended that the judgment of the district court be affirmed.
By the Court: For'the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.