Elmer v. Mitchell

Cassoday, J. The defendants having served notice on the plaintiff’s attorneys, December 27, 1888, that they thereby withdrew and dismissed their appeal from the judgment, subject to the payment of costs, if any, that appeal is hereby dismissed accordingly. A careful examination of the record convinces us that there was no abuse of discretion on the part of the trial court in refusing to set aside the judgment and allow the defendants severally to answer. The proposed answers were to the effect that the purchase of the water-wheel was by Henry Mitchell, Sr., alone; that neither Henry, Jr., nor James was at the time of the purchase a partner of his father; that the water-wheel did not work well, without stating specifically wherein the alleged defect consisted. The only excuse given by any of the defendants for not answering was the sickness of the old gentleman from the time of the commencement of the action to December 1, 1887. The affidavits, however, left the matter of his inability to answer by reason of sickness very unsatisfactory, and gave no excuse for the other defendants. But it is of no benefit to any one to discuss the facts. The rule is well settled that this court will not disturb such an order unless there has been a manifest abuse of discretion in the trial court in making it. We find no evidence of such abuse in the record. The order of February 8, 1888, is affirmed. Since that order was made without leave to renew the [361] same, or without prejudice to such renewal, it is conceded by the learned counsel for the defendants that there was no ground for the renewal of such motion in April, 1888, and accordingly that such motion was properly denied May 7, 1888, and that the appeal from that order should be, and is hereby, dismissed. By the Court. — ■ Ordered accordingly.