Mugg v. Graves

Worden, J.

Suit by Graves against the appellants upon a promissory note. Judgment for the plaintiff.

Two errors are claimed in brief of counsel for the appellants to have been committed. Eirst, in refusing a continuance ; and, second, in admitting improper evidence.

The suit was commenced in January, 1861, and the issues in the cause were made up at the same term of the Court, and the cause was continued generally. At the May term, it was again continued generally, as was also the case at the *237 September term. At the January term, 1862, the cause was further continued on the application of the defendants, on affidavit filed. At the May term, 1862, the cause was again continued, the plaintiff consenting thereto. At the January term, 1863, two years after the issues had been made up, the defendants again applied, on affidavit, for a continuance, but the application was overruled.

H. V. Long and Hdgar Haymond, for the appellants. Newcomb Tarkington, for the appellee.

The affidavit for a continuance states that one Howe was a material witness, &e., and that on the 1st of November, 1861, he volunteered to enter the service of the United, States; that the defendants had been unable to procure his testimony, but believed they would be able so to do by the next term of the Court. It does not state that the defendants were not apprised, before the witness left, that he was about to do so, nor does it show any reason why his deposition might not have been taken before he left. The issues had been made up nearly a.year before the witness volunteered, and there was ample time to take the steps to procure his testimony before he left. Under the circumstances, we can not say that the Court below committed any error in refusing a further continuance of the cause.

There was an item of evidence offered by the plaintiff to which the defendants objected, and, upon the objection being overruled, excepted. But no ground of objection was stated, or in any manner pointed out. It has been held in numerous cases, that such an objection is not available; hence we have not examined whether there was any valid objection to the testimony. If there was, it should have been presented to the Court below, so that it might have been understandingly passed upon.

Per Curiam.

The judgment below is affirmed, with costs, and 3 per cent, damages.