Hicks v. Portwood

Cobb, P. J. (After stating the facts.) 1. The rule is now well settled that an affidavit intended to be used in a legal investigation must be entitled in the cause in which it is intended to be used, or otherwise show upon its face that it is connected therewith. Hill v. McBurney Oil Co., 112 Ga. 788 (38 S. E. 42); Brucker v. O’Connor, 115 Ga. 95 (2) (42 S. E. 245.) The mere fact that an affidavit may be attached to another paper in'which the case is stated would not, in all cases, make the affidavit admissible, unless the paper was of such character as that it would necessarily be inferred that the attention of the witness was called to the paper, or it was a necessary or proper exhibit to the affidavit. But, without reference to this question, it appears from the note of the judge on the bill of exceptions that the affidavits were not attached to the brief of counsel in which the case was stated. There was no error in excluding the affidavits offered as evidence. 2. Whether the hearing of the case should have been postponed, ■even for a day, in order to allow the defects in the affidavits to be cured, was a matter addressed to the sound discretion of the judge; and there is nothing in the record ,to indicate that the refusal to postpone was, under the circumstances, an abuse of discretion. 3. When the affidavits were ruled out, so far as -the merits of the ease were concerned, it stood upon the verified petition and the verified answer, and the averments of fact in these two pieces of pleading were conflicting. The case therefore falls within the well-settled rule that where the evidence is conflicting a judgment granting or refusing an injunction will not be interfered with. Judgment affirmed. Ml the Justices concur.