Witz v. Spencer

51 Ind. 253 | Ind. | 1875

Downey, J.

Action by the appellee against the appellants, on a contract for the sale and delivery of cattle, and for the pasturage of cattle. Complaint in two paragraphs. Answer in several paragraphs. Reply. Trial by a jury. Verdict for the plaintiff'. Motion by the defendants for a new trial overruled, and judgnient.

Several alleged errors are assigned, but two questions only ° are urged. The first is, whether or not the court erred in refusing to allow the defendants time to prepare an affidavit for a change of venue, while the jury was. being empanelled, on the ground of the undue influence of the plaintiff over the citizens of the county, the defendants stating to the court, at the time, that the fact had not come to their knowledge until that time.

We are clearly of the opinion that there was no error in this. Suspicion is cast on the good faith of the application by the fact that the court had immediately before overruled an application by the same party for a continuance of the cause.

It does not appear that the defendants had used any diligence to ascertain, at any earlier time, whether such ground for a change of venue existed or not. It was not a sufficient excuse, under the circumstances, for not having made the application sooner, that the fact had not sooner “come to their knowledge.”

The other question is, whether or not the court erred in refusing to give the following instruction to the jury, at the request of the defendants: “ If the contract between the parties was as it is claimed to have been by the defendants, then there is a fatal variance in the proof, and the plaintiff cannot recover.”

The evidence is not in the record, and therefore we cannot say that there was any error in refusing the instruction.

The judgment is affirmed, with five per cent, damages and costs.