Myers v. Kessler

142 F. 730 | 3rd Cir. | 1906

DALLAS, Circuit Judge.

There are three specifications of error in this case. By the first of them it is averred that the learned judge ■erred in refusing to postpone the trial upon the request of the defendant below, who is the plaintiff here. But motions for continuance or delay are addressed to the sound discretion of the trial court, and if the denial of them be in any case reviewable, there certainly is nothing in the circumstances of this one to induce a departure from the •ordinary practice of appellate tribunals, which is to refrain from interference with the determination of such applications by the courts of ■first instance. We think that the motion now in question was properly overruled; but, even if we entertained a doubt upon that subject, yet, for the reason we have stated, the first specification would be dismissed. The learned judge was right in denying a new trial; but it is enough to say of the second specification that his refusal to grant one was not assignable for error.. Therefore that specification likewise is dismissed.

The only other specification is that “the court erred in its opinion, in that it held that the testimony before it did not show that defendant had a meritorious defense to the action as against the plaintiff.” The opinion here referred to is that which was delivered in refusing a new trial; and, having already said that such refusal was not itself assignable for error, it can hardly be necessary for us to add that the opinion in support of it' is not reviewable. It is, however, perfectly cléar that no legal defense to the action was made out. The suit was brought upon promissory notes, and the defense was that they had been given on Sunday and on account of a stock-gambling transaction. But the notes were regular upon their face, and the plaintiff had purchased them in good faith and for value, before their maturity, and without notice of any defense whatever.

The judgment of the Circuit Court is affirmed.