Denmond v. Hillyer

Lumpkin, J. 1. Where upon the call of a ease counsel entered upon the trial thereof without making any motion for a continuance or any suggestion of his client’s absence, or of his desire to have her present, or of the materiality of her evidence, it will not necessitate the grant of a new trial that she made affidavit that for several days before the trial she was ill and could not attend the trial and testify, or communicate with her counsel; especially where the statement contained in her affidavit as to the evidence which she would have given was of the vaguest and most general character. 2. Where property was levied on as belonging to a woman and was claimed by her daughter, and on the trial was found subject, newly discovered evidence of a witness, that while the claimant was working for wages, her mother bought the property in dispute and partly paid therefor from the proceeds of the daughter’s wages, did not require the grant of a new trial. Under the general issue of subject or not subject, such evidence would not likely change the result; nor does it appear that such facts were unknown to the claimant, though not communicated by ' her to her counsel. Judgment affirmed. All the Justices coneur, except Holden, J., who did. ■ not preside.