Wardlaw v. McConnell

McCay, Judge. The continuance of a case is, by the statute, placed at the discretion of the Court. True, this Court will inquire into the exercise of that discretion, and if it has been improperly made use of to the injury of the party losing the case at the final hearing, this Court will interfere. Still, we must, from the nature of the case, give every presumption to the decision of the Court. In this case, the showing has the serious defect that it does not show any subpoena to have issued. All that is said is, that the defendant ordered a subpoena to be served. To whom did he give the.order? This does not appear. It would be presuming a great deal in favor of this showing to presume the order to have been given to the clerk, with an additional order to him to give it to the sheriff. The rule is that no presumptions are to be made in favor of such showings. They are made ex parte, and the duty of one who relies upon it is to make it conform to the rules. It was no necessary, or even proper part of the plea oí payment that the notes and accounts should be set out. As to the verdict, we think there is evidence sufficient in the record to justify it. True, there is strong evidence that the debt was paid, or admitted to be paid ; but the character of the witness was attacked, and it was for the jury to weigh it. We are very reluctant to disturb a verdict, on the facts, when the Judge who presided at the trial refuses to interfere. Judgment affirmed.