Gibson v. Carr

45 So. 864, 91 Miss. 773

Opinion

Calhoon, J.,

delivered the opinion of the court.

Gibson & Williams'were contractors for the construction of a piece of railroad. This action is against the members of the firm of Gibson & Williams for pay for labor of Carr and his teams, used about that work. The action is against the members of the firm of Gibson & Williams, and both members of that firm appeared and pleaded to the declaration. After recovery by Carr against both members of the firm of Gibson & Williams, A. O. Gibson alone appeals. There does not appear anywhere that there was any summons and severance, so as to conclude Williams, the other partner in the suit. . So-it would seem that Gibson cannot alone get along in this appeal.

The main contention he makes, however, is on the refusal of a continuance applied for by both members of the firm on A. O. Gibson’s affidavit that they could not safely go to trial because of the absence of W. H. Hale, a witness. Section 184 of the Code of 1906 is not conformed to in the application for a continuance. That section is much fuller than any previous statute on continuances, and it makes it necessary that the residence of the absent witness should be given and that there has been used “ due diligence to procure the presence of the absent witness, stating in what snch diligence consists.” It further provides that the application must show “ that the continuance is not sought for delay only, but that justice may be done.” It further provides that continuances may be granted or refused in the discretion of the court, and that a “ denial of continuances shall not be ground for reversal unless the supreme court shall be satisfied that injustice resulted therefrom.” The application in this case does not conform to these requirements, and we are not disposed, after looking through this whole record, to reverse this case because of the refusal. Gibson himself was a'witness on the stand, and he had another witness, and, on the whole record, we think the contention of Carr was properly sustained by the jury.

Affirmed.