177 Ind. 698 | Ind. | 1912
Suit by appellee against appellant for damages for personal injuries. Trial by jury, verdict and judgment for appellee. Tbe only error assigned here is tbe overruling of appellant’s motion for a new trial. Tbe motion presents two questions, viz.: (1) The refusal of the trial court to grant a continuance, and (2) the alleged insufficiency of the evidence to support the verdict.
The court properly overruled the motion. No subpoena was served on the witness for her appearance on December 9. Due diligence was not shown. §419 Burns 1908, §410 R. S. 1881. Gordon v. Spencer (1829), 2 Blackf. 286; Lane v. State, ex rel. (1866), 27 Ind. 108; Toledo, etc., R. Co. v. Stephenson (1892), 131 Ind. 203, 30 N. E. 1082; Ohio, etc., R. Co. v. Wrape (1892), 4 Ind. App. 108, 30 N. E. 427.
Note.—Reported in 98 N. E. 633. See, also, under (1) 9 Cyc. 143; (2) 3 Cyc. .348. As to the diligence required to have been exercised by a party to entitle him to a continuance on the ground of the absence of a witness, see 74 Am. Dec. 145.