Simons v. Mathis

Broyles, J. 1. In all applications for continuances upon the ground of the absence of a witness, it must be shown to the court, among other things, that “such witness is not absent by the permission, directly or indirectly,” of the applicant and that “he expects he will be able to procure 'the testimony of such witness at the next term of the court.” Civil Code, § 5715. The motion for a continuance in this case, being based on the absence of witnesses, ■ and being defective in these two important particulars, was properly overruled by the court. 2. There is no substantial merit in the other special assignments of error. 3. There was, however, no evidence authorizing the jury to find against the defendant Ernest Simons. Consequently, a general verdict in favor of the plaintiff against the defendants was not supported by the evidence. However, as the verdict against the other defendant, Mrs. Lizzie Simons, was authorized by the evidence, we do not deem it necessary to require another trial of the ease, but, exercising the power [589] granted us to “award such order and direction as may be consistent with the law and justice of the case,” we direct that the judgment of the trial court be reformed so that no recovery against Ernest Simons shall be had therein. Judgment affirmed, with direction. Decided February 4, 1916. Appeal; from Berrien superior court — Judge Thomas. April 10, 1915. W. G. Harrison, J. W. Powell, Hendricks, Mills & Hendricks, for plaintiffs in error. J. P. Knight, contra.