Pastorius v. Whidby

80 So. 513, 76 Fla. 571

Opinion

Whitfield J.

In an action on common counts against Pastorius for 480 crates of tomatoes sold to him, he pleaded never was indebted and also a special plea of counterclaim. A motion for continuance made on the ground- of an absent material witness was denied. At the trial an attorney for the plaintiff testified' as to an interview he had with the defendant with reference to the plaintiff’s claim. Verdict and. judgment were rendered for the plaintiff and defendant took writ of error. The affidavit for continuance is defective in that it does not state how or where the information was obtained by affiant as to what the absent witness would testify. Moore v. State, 59 Fla. 23, 52 South. Rep. 971; Stinson v. State, decided at this term. An affidavit of the absent witness filed on the motion for new trial showed that the testimony of such witness would have been of no value in. the trial, therefore no harm resulted in denying the motion for a continuance.

The fact that the counsel for the plaintiff testified in the case gives the defendant no ground for reversing the judgment.

Judgment affirmed.

All concur.