Wilson v. Coles

Blackford, J. Trespass by Wilson against Coles. Plea, the general issue. Verdict and judgment for the defendant. [403] The record states, that this cause was continued on the 10th of November, 1828; and that, on the next day, the parties appeared by their attorneys, and for trial put themselves upon the country. It further appears that a jury was impannelled, and that a verdict and judgment were rendered for the defendant. J ... ,. Cooper, for the plaintiff. Rariden, for the defendant. There is no error in these proceedings. Although the cause had been continued, the parties might afterwards, if they chose, proceed to trial. Their proceeding to trial cancelled the previous order of continuance. The plaintiff relies, for a reversal of the judgment, on his having been entitled to the continuance, in consequence of an affidavit alleged to have been made on his behalf, and on his having objected to the cancelling of the order of continuance. These grounds of error, however, do not appear of record. The affidavit and the objection to the proceeding to trial, alleged to have been made for the plaintiff, could only be shown by a bill of exceptions. The transcript of the record, to be sure, contains the copy of an affidavit for a continuance made on the part of the plaintiff, together with a statement that he objected to the proceeding to trial after the order of continuance, and that he tendered a bill of exceptions to the opinion of the Court ordering on the •trial, which the Court refused to seal. These circumstances, however, are only the statements of the clerk, and constitute no part of the record. As the case is presented to us, we must consider that the' Court correctly permitted the causé to proceed after the order of continuance; and that the trial took place by consent of the parties. The judgment must, therefore, be affirmed. Per Curiam.—The judgment is affirmed with costs.