Young v. Darien & Western Railroad

Hill, C. J. Brailsford Young sued the Darien and Western Eailroad; Company in a justice’s court, for damages for killing [318] his cow. The justice rendered judgment in favor of the plaintiff, and the' defendant entered an appeal to a jury. The appeal case was, by consent of the parties, continued for the first term. At the second term the plaintiff’s counsel asked for a further continuance, on account of the absence of the plaintiff. No reason whatever was given, explanatory of his absence, and the justice refused to continue the case over the objection of counsel for defendant. 1. Continuances are addressed to the sound discretion .of the court, and there does not seem to have been any abuse of such discretion in refusing to allow a continuance in this case. Section 5137 of the Civil Code, cited by plaintiff in error, contains a restriction of the discretion of the court as to the continuance of an appeal case. It does not confer the right to have an appeal case continued for two terms, or even for one, except in the discretion of the court. 2. An assignment of error was based upon the refusal of the justice to allow the auditor of the defendant company to testify whether any report had been made of the killing of the cow sued for on or about the time alleged. This testimony was objected t,o and excluded upon the ground that there was better evidence, to wit, the written Teport, if such had been made. If the report was in writing, it should have been produced. And whether in writing or verbal, to have made the report admissible as against the defendant, it should have been alleged and proved that it was made by an agent of the company, authorized to make' an investigation of the killing and to report the facts to the company, and to bind the company by such admission. This was not shown, and the justice did not err in excluding the testimony. 3. The assignment of error in the judgment of the superior court, dismissing the certiorari because the judgment included the costs of the justice’s court, does not specifically set forth the error in said judgment. The assignment specifies the decision complained of, but does 'not with sufficient particularity allege the error claimed to exist in the decision. ■ For this reason, this court will not pass upon the ruling complained of in this assignment of error. Hart v. Phœnix Ins. Co., 113 Ga. 859. We therefore affirm the judgment of the superior court in overruling the certiorari. Judgment affirmed.