Gibson v. Carr
| Decision Date | 16 March 1908 |
| Citation | 91 Miss. 773,45 So. 864 |
| Court | Mississippi Supreme Court |
| Parties | OBADIAH A. GIBSON v. AMSI M. CARR |
October 1907
FROM the circuit court of, second district, Choctaw county, HON JOSEPH T. DUNN, Judge.
Carr appellee, was the plaintiff in the court below; Gibson appellant, and one Williams, members of the partnership styled "Gibson & Williams," were defendants there. From a judgment in plaintiff's favor against the two defendants, Gibson alone appealed to the supreme court.
Plaintiff's suit was for a sum claimed as compensation for labor performed in railroad construction for defendants. The record does not show service of process upon defendants, but the plea was by "defendants." Gibson actively participated in the defense of the case, but Williams is not shown to have been present in court on the trial. The opinion of the court states the facts.
Affirmed.
May, Flowers & Whitfield, for appellant.
The court below erred in overruling the application for a continuance. It was clearly shown that the rights of the defendants would be prejudiced if compelled, as they were, to go to trial with the only witness, upon whom they could rely, absent. The application, duly made out, showed that the witness, Hale, was sick in bed, and unable to attend court.
Alexander & Alexander and Pinson & Pinson, for appellee.
There is absolutely no merit in this appeal. The appellee, Carr, sued the members of the firm of Gibson & Williams, railroad contractors, for a small amount due him for labor of himself and his team in railroad construction work. He recovered less than he sued for, and Gibson, one of the partners, prosecutes this appeal.
There is no denial of the partnership anywhere disclosed in the record. The defense of the case throughout has been in the name of the partnership. The record nowhere discloses that there was any summons and severance so as to conclude Williams, appellant's partner, hence it is apparent that the court will not consider this appeal.
It is contended by learned counsel for appellant, Gibson, that the court below erred in refusing the application of defendants for a continuance based on Gibson's affidavit that they could not safely go to trial because of the absence of one Hale, a witness for the defense. But the answer to this contention is that the showing for a continuance fell short of the requirements of Code 1906, § 784. It did not disclose the residence of the absent witness, as required; it did not set out fully the facts to be testified to by the absent witness so the trial judge might pass upon the materiality; it did not show diligence; it did not show that a subpoena had even been served on the witness, but only that a subpoena had been issued for him. An ex parte certificate or statement of some one who purported to be a physician residence not stated, was attached to the application, alleging that Hale was...
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