Draper v. Robinson

Kirby, J. This was a suit by James Robinson against T. M. Draper, for damages alleged to have grown out of the use of slanderous and defamatory words about him, charging in effect that he had committed perjury. A general demurrer was interposed to the complaint, but it does not appear that the court passed upon it-. Answer was then filed, denying the allegations of the complaint. Appellant, on the calling of the case for trial, filed a motion for continuance, setting up that he was sick and physically unable to be present at the trial. Several affidavits were filed in corroboration of his motion, and some oral testimony was heard by the court. The motion was denied, and it is contended here that the court erred in its refusal to grant a continuance and also in the giving of the instruction numbered one at the request of the plaintiff. The abstract of the appellant does not show the testimony heard orally by the court on the motion for a continuance, neither does it set out any of the testimony heard upon the trial of the case, nor any of the instructions given by the court, except the one complained of, nor any motion for a new trial made and overruled, in fact it is so incomplete and insufficient that it can not be determined from it that a trial was had and a verdict rendered, and this court is precluded from passing upon the merits of the ease. Counsel for appellee have not attempted to supply the omissions and defects in appellant's abstract, but only to emphasize them and insist upon an affirmance of the judgment of the lower court for noncompliance with rule nine of this court. There being nothing in the abstract and brief to show, in accordance with the rules of this court, error committed in the trial of the case below, which should be reviewed here, the judgment must be affirmed. Files v. Tebbs, post p. 207. It is so ordered.