Esch v. Esch

159 N.E. 555, 87 Ind. App. 507, 1928 Ind. App. LEXIS 63

• Court: Indiana Court of Appeals
• Decided: January 11, 1928
• Docket: No. 13,053.
• Status: Published

Opinion

Nichols, J.

Action in ejectment by appellee against appellant in the Delaware Circuit Court for the possession of certain real estate in Muncie, Indiana, of which appellee claims to be the owner in fee.

Answer by appellant in general denial.

The cause was tried by a jury, which returned a verdict for appellee, for the possession of the real estate and for $2,500, on which judgment was rendered.

The overruling of appellant’s motion for a new trial is the error assigned, and relied on for a reversal.

The motion for a new trial is not set out in the brief, nor is it shown that any exception to any ruling thereon was taken by appellant at the time.

Even if the motion for a new trial with exceptions to the court’s ruling thereon were properly presented, the only question which appellant undertakes to present is error of the court in overruling her application and affidavits for a continuance. There was no reversible error in the court’s ruling. The affidavits-' were wholly insufficient to justify a continuance on the account of an absent witness. They do not show what facts such witness, if present, would testify to, nor that such witness, if present, would give any testimony relevant or material to appellant’s defense. Further, appellee’s counsel promised, in open court, to have the absent witness present at the trial, and she was present at the trial, in court, and ready to testify as a witness.

There was also an application by appellant, supported by affidavits, for a continuance, because of the absence of her attorney, but it doés not appear by the record before us that appellant was prejudiced by the court’s ruling thereon. See Whitehall v. Lane (1878), 61 Ind. 93.

Affirmed.