Miller v. Harker
Miller v. Harker
Opinion of the Court
This action was brought by the appellee against the appellant, to foreclose a mortgage.
Several defences were interposed, usury, payment, want of consideration and set-off. The cause has been three times tried. The first time a verdict for $575 was returned, and a new trial granted to the plaintiff. The second time a verdict for $599.17 was returned, and a new trial granted by agreement. The third time a verdict for $775 was returned, and judgment rendered upon the verdict. A motion for a now trial, on the ground that the court erred in refusing to continue the cause, was overruled, and this ruling presents the only question in the record.
The affidavit in support of this motion was made by the appellant, and averred, in substance, that “ she has a good and sufficient defence to plaintiff's cause of action, as shown by her answers to the complaint;” that she is a competent witness in her own behalf, and that “ her testimony is indispensable and necessary to support the defence; ” that she had employed the Hon. Francis T. Hord to defend said cause, and that he did defend it during the two preceding
This affidavit was not sufficient to continue the cause because of absent testimony. It failed to allege any material fact to which the appellant could testify, or that the facts constituting her defence could not be proved by other witnesses whose testimony could as readily have been procured. The want of these averments rendered the affidavit insufficient for such purpose. French v. Blanchard, 16 Ind. 143.
It was insufficient on the ground that her counsel was not familiar with her defence. It is not.stated when she was informed that Hon. Francis T. Hord had withdrawn from the case, and for aught that appears abundant time may thereafter have elapsed to enable her, by the exercise of ordinary diligence, to have employed and fully informed other counsel of her defence. Neither ground of defence seems intricate or difficult, and no reason occurs to us why other counsel may not readily have become familiar with such defence. It is averred, it is true, that she was detained at home by the sickness of her son after she heard of the withdrawal of her attorney, but this alone is no excuse for failing to employ another, and to put him in possession of the facts constituting her defence, if a reasonable time elapsed for such purpose. The contrary is not averred, and therefore we must presume that such time elapsed.
The affidavit was also insufficient on the ground of her absence as a party. If she resided some distance from the place of trial (a point upon which the affidavit is silent), the «xcuse for her absence was sufficient, but a sufficient excuse
The affidavit being insufficient, the motion to continue was properly overruled, and the judgment should therefore be affirmed.
Per Curiam. — It. is therefore ordered, upon the foregoing opinion, that the judgment be and it is hereby in all things affirmed, at the appellant’s costs.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.