Morgan v. Montgomery

12 Ind. 550

• Court: Indiana Supreme Court
• Decided: June 23, 1859
• Status: Published

Opinion

Per Cwiam.

But one point is presented to the Court in this case, by the brief of appellant, and that is upon the ruling of the Court in suppressing a deposition. The deposition was suppressed at the January term, 1857. A motion was then made, founded upon the affidavit of the defendant filed at the previous term, and upon the suppressed deposition, to continue the cause. The continuance was granted.

The record does not contain the affidavit alluded to, but from the connection in which it is mentioned, the presumption would, perhaps, arise, that the affidavit had reference to the necessity of obtaining the testimony of the witness named in the deposition, &c.

The record does not show that, at the next term, any action was had in regard to the deposition, nor that any motion was made to further continue; nor does it contain the evidence which was given upon the trial, which was had at that term. Whether the witness, whose deposition had been suppressed, testified upon the trial, or whether the same facts contained in his deposition, were before the jury from other witnesses, does not appear. There was no motion for a new trial. Under these circumstances, we see no error in the record.

P>. S. Major, for the appellant. W. S. Holman, for the appellee.

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