Deacon v. Rasch
| Decision Date | 24 April 1907 |
| Docket Number | 5,982 |
| Citation | 81 N.E. 84,40 Ind.App. 77 |
| Parties | DEACON v. RASCH |
| Court | Indiana Appellate Court |
From Warrick Circuit Court; Roscoe Kiper, Judge.
Action by John Rasch against Mary Deacon. From a judgment for plaintiff, defendant appeals.
Reversed.
W. W Ireland, William Reister and Henry F. Fulling, for appellant.
Philip C. Gould, for appellee.
Appellee, plaintiff below, brought this action against the appellant to recover possession of real estate and damages for the wrongful detention thereof. The action was brought before a justice of the peace, and judgment rendered for appellee, from which judgment an appeal was taken to the Superior Court of Vanderburgh County, then by a change of venue to the Warrick Circuit Court, where the case was submitted to a jury. The jury returned a verdict, giving appellee possession of said real estate and $ 140 damages, on which verdict the court rendered judgment.
The appellant assigns as error the action of the court in overruling appellant's motion for a new trial and the overruling of appellant's motion for a continuance. The reasons for a new trial are that the court refused to grant a continuance in the trial of said cause, that the verdict is not sustained by sufficient evidence, and that the verdict is contrary to law.
On May 27, 1905, at the May term of the said Warrick Circuit Court appellant filed her verified motion for a continuance. On June 7, 1905, of the same term, the court sustained appellant's motion for a continuance, and the cause was continued until the next term, the October term of said Warrick Circuit Court. On June 24, of the same term, the parties agreeing thereto, said cause was set for trial on October 10, 1905, the same being the next, or October, term of said Warrick Circuit Court. On October 10, 1905, appellant filed her verified motion for a continuance of said cause, which motion was by the court overruled. Said court of its own motion postponed the hearing of said cause to October 20, 1905. On October 20, 1905, appellant again filed her motion for a continuance. The plaintiff filed a written admission that the defendant would, if in court, testify to the facts material to the issues as stated in the affidavits of defendant for a continuance. In support of the motion for a continuance, the affidavit of W. W. Ireland, senior counsel for defendant, was filed, in which it was shown that the appellant was sick and could not attend the trial, and that proper defense could not be made without her, as the facts were particularly known to her, and could not be proved by any other person, and that her mental condition was such that she could not give an intelligent deposition; that appellant had a meritorious defense, to wit, that she never rented the premises in controversy from the plaintiff or any one else, and never agreed to pay the rent in advance. Said Ireland, for appellant, further stated in said affidavit that his health was such that he was unable to attend the trial. The affidavit of William Reister, in support of said motion, was also filed, in which affidavit he stated that he was junior counsel for appellant, but had relied upon the senior counsel, W. W. Ireland, to prepare and conduct the defense; that the appellee will rely upon statements and admissions made by appellant, and contained in the depositions of Will Rasch, Miss Tillie Rasch, and Miss Minnie Rasch. These statements and admissions appellant will deny, that there is no other person by whom these statements can be denied, and her presence at the trial is necessary to make defense. The affidavit of J. H. Willis, a physician attending on appellant, was also filed, in which affidavit he states that appellant was a woman sixty years of age, and is suffering from chronic...
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