Epitomized Opinion

Action in libel. When the case was assigned for trial Everett was imprisoned in the penitentiary, serving an indeterminate sentence. When the case came for trial two weeks later, a motion for a continuance was made by him and supported by an affidavit, setting forth the fact of his imprisonment and that it was necessary for him to be present at the trial to adv.ise with his couunsel, pass judgment upon the jurors as they were selected, and attend to other things incidental to the trial. The thotion was overruled and the court ordered that the case proceed to trial. Thereupon Everett refused to offer any evidence in the case and judgment was rendered against him. In affirming the judgment the Court of Appeals held:

1. "It is well settled by the authorities that a motion of this kind is directed to the judicial discretion of the trial court, and un1~ss there has been an abuse of this discretion and it is shown that the abuse of discretion operated to tao p~ejuuice o~. ~ne party in the final determination of the case, a reviewing court will not order a new trial."

2. "In this case, however, the plaintiff refused to offer any testimonv If his evidence had been offered, the lury might have returned him a verdict, notwithstanding his absence from the trial table, nnd in such event there could have been no prejudice. Holt v. State, lbS. 691. Under such circum-atances it cannot be said that the overruling of the motion resulted in any prejudice to the plaintiff."