69 Ind. App. 505 | Ind. Ct. App. | 1919
This was an action by the appellee against the appellant, begun before a justice of the peace of Center township, Marion county, for dam
After judgment in favor of the appellee, the case was appealed to the Marion Superior Court, where there was a trial by jury, and verdict and judgment for $175 in favor of the appellee. From this judgment, after a motion for a new trial was overruled, this appeal is prosecuted.
At the time of the trial, in the Marion Superior Court, the appellant filed his affidavit and motion for a continuance, which was submitted to and overruled by the trial court.
The errors relied upon for reversal are: (1) The court erred in overruling the motion of appellant for a continuance of this case. (2) The court erred in overruling appellant’s motion for a new trial. (3)' The judgment appealed from is not fairly supported by the evidence. (4) The judgment appealed* from is clearly against the weight of the evidence. (5) The verdict of the jury and the judgment entered thereon are not supported by sufficient evidence, and are contrary to law.
“Affiant says that as soon as he learned said canse was set down for trial, be immediately caused a subpoena to be issued for said Roy Bryant, and tbe same was served by tbe sheriff of said county leaving a copy at tbe residence of tbe witness; that thereupon tbe sheriff informed this affiant that be learned when serving said subpoena that said witness was absent from home which was tbe first information that this defendant bad of tbe absence of said witness. That affiant went to tbe residence of said Roy Bryant and there learned that be bad been absent from home for several days and that bis mother with whom be resided did not know of bis whereabouts. Affiant further says that he then went to tbe place where said Roy Bryant bad been employed and there learned that said Roy Bryant bad not been at work for several days and that bis employer did not know of bis whereabouts. * * '* Affiant further says that Roy Bryant has been duly subpoenaed to attend this court as a witness and that be has expressed bis willingness to testify herein. ’ ’
It will be observed that tbe appellant has failed to state when bis cause was assigned for trial, when be learned such fact, when be caused tbe subpoena to be issued for tbe absent witness, when tbe same was served by tbe sheriff, when he received his first infor
In order that the appellant might be entitled to a continuance, it was incumbent upon him to show affirmatively that he had been duly diligent in his efforts to obtain the absent evidence, and to apprise the court that his efforts had been unsuccessful. In this, as appears by the affidavit, he has wholly failed. The motion for continuance was properly overruled. Ransbottom v. State (1896), 144 Ind. 250, 254, 43 N. E. 218.
Judgment affirmed.