Fausett v. Voss

12 Ind. 525

• Court: Indiana Supreme Court
• Decided: June 16, 1859
• Status: Published

Opinion

Per Curiam.

Action by the appellee against the appellant, on a note made by defendant to one A. C. Shropshire, and by him indorsed to the plaintiff.

Answer, that the note was given for a heifer, a cow, and a bull; that the cow was warranted to be with calf by an imported Durham bull, whereby she and the calf would be worth 50 dollars more than if she were with calf by common stock. Breach of warranty, that the cow was not with calf by a Durham bull, whereby, &c.

Trial by the Court; finding and judgment for the plaintiff. Two errors are assigned—

1. In overruling the defendant’s motion for a continuance; and,

T>. Moss, for the appellant. G. IT. Voss, in person.

2. In overruling his motion for a new trial.

The continuance was applied for on account of the absence of a witness. The affidavit filed by the defendant in support of his motion, sets out the facts expected to be proven by the absent witness, corresponding mainly with those set up in his answer, but it does not state that “ he believes them to be true.” The affidavit was defective in this particular, if in no other. 2 R. S. p. 108, § 322. There was no error in overruling the motion for a continuance.

The record does not disclose the fact that any motion for a new trial was made, except inferentially, by stating that the motion was overruled, while no written reasons for a new trial appear to have been filed at all. This is fatal to the motion. Kirby v. Cannon, 9 Ind. R. 371.— Thompson v. Shaefer, id. 500.

The judgment is affirmed with 5 per cent, damages and costs.