1. Both grounds of the motion to dismiss the writ of error are without merit. Porter v. Holmes, 122 Ga. 780; McCain v. Bonner, Id. 842.
2. The rule laid down in the code in reference to a continuance for the non-return of interrogatories is as follows: “When a commission issues to examine a witness, it not having been "returned shall be no cause for a continuance, unless the party seeking the continuance will make the same oath of the materiality of the testimony as in the case of an absent witness, and the party must show due diligence in suing out and having the same executed.” Civil Code, §5136. The showing in the present case seems to comply with the requirements of the law, except as to the diligence exercised by the defendant in securing the return of the interrogatories. We think it was fatally lacking at this point. It was certainly’ not an act of diligence to rely upon the opposite party to pay the fees of the commissioners, even though such commissioners were nominated by him. The law gives the right to the opposite party to select two commissioners, one of whom must act in the execution of the interrogatories; but we know of no law which authorizes the party suing out the interrogatories to rely upon his adversary to pay the expenses of interrogatories taken out in his own behalf. Even if the judge has any discretion to grant a second continuance in a case at law, at the instance of the same party (Civil Code, §5126), we think that the showing in this case was insufficient, and that the granting of a new trial, which was in effect the granting of a second continuance, was an abuse of discretion.
Judgment reversed.