De Puy v. Everett

3 Ind. 257

• Court: Indiana Supreme Court
• Decided: January 22, 1852
• Status: Published

Opinion

Blackford, J.

Everett sued De Puy in assumpsit. At the March term, 1850, which was the term to which the writ was returnable, the cause was continued on the defendant’s motion.

At the September term, 1850, the defendant again moved for a continuance, but the motion was overruled.

Plea, the general issue. Cause submitted to the Court, and judgment rendered for the plaintiff.

The overruling of the defendant’s last motion for a continuance is assigned for error.

The affidavit, on which this last motion was founded, (admitting it to be a part of the record,) refers to an affidavit made at the previous term for a continuance; but the affidavit referred to is not a part of the record. The affidavit last made, therefore, can receive no aid from the one to which it refers; and it is insufficient, for not showing the principal facts expected to be proved by the absent witness. R. S. p. 719.

We cannot say, therefore, that the Court erred in overruling the defendant’s last motion for a continuance.

D. D. Pratt, for the plaintiff. D. M. Cox, for the defendant.

Per Curiam.

The judgment is affirmed, with costs.