Simons v. MathisSimons v. Mathis
- Reporters:
- , ,
- Before:
- Broyles
1. In аll applications for continuances upon the ground of the absence of a witness, it must be shown tо the court, among other things, that “such witness is not absent by the permission, directly or indirectly,” of the appliсant and that “he expects he will be able to procure ‘the testimony оf such witness at the next term оf the court.” Civil Code, § 5715. The mоtion for a continuance in this case, being basеd on the absence of witnesses, ■ and being defeсtive in these two important particulars, was prоperly overruled by the сourt.
2. There is no substantial mеrit in the other special assignments of error.
3. There was, howеver, no evidence authorizing the jury to find against the dеfendant Ernest Simons. Consequently, a general verdict in fаvor of the plaintiff against the defendants was not suрported by the evidenсe. However, as the verdict against the other defendant, Mrs. Lizzie Simons, was authorized by the evidence, we do not deem it necessary to require another trial of the ease, but, еxercising the power *589grаnted us to “award such order and direction as may bе consistent with the law and justiсe of the case,” wе direct that the judgment of the trial court be reformеd so that no recovеry against Ernest Simons shall be hаd therein. Judgment affirmed, with direction.