Home Fire Ins. Co. of Omaha v. Galley

• Decision Date: 05 December 1894
• Citation: 43 Neb. 71,61 N.W. 84
• Parties: HOME FIRE INS. CO. OF OMAHA v. GALLEY.
• Court: Nebraska Supreme Court

43 Neb. 71

61 N.W. 84

HOME FIRE INS. CO. OF OMAHA

v.GALLEY.

Supreme Court of Nebraska.

Dec. 5, 1894.

Syllabus by the Court.

1. An application for continuance held properly denied when there was no showing of unavoidable absence of an important witness, nor that, if a continuance was granted, his attendance or testimony would afterwards be secured.

2. An erroneous exclusion of testimony is ordinarily cured by the admission of that excluded.

3. The mere refusal of the court to require the service of a stenographic reporter for the trial of a cause is not reversible error, although it may become such if thereby prejudice is shown to have resulted to the party whose request in this regard has been denied.

Error to district court, Nuckolls county; Morris, Judge.

Action by Jacob Galley, administrator of Elijah L. Johnson, deceased, against the Home Fire Insurance Company of Omaha, Neb. Judgment for plaintiff. Defendant brings error. Affirmed.A. S. Churchill, for plaintiff in error.

W. A. Bergstresser, for defendant in error.

RYAN, C.

This action was prosecuted in Nuckolls county district court for the amount of loss sustained by defendant in error by the burning of his building insured by plaintiff in error. There was a verdict and judgment for the amount of insurance named in the policy, with interest.

The first error assigned is that the court improperly denied plaintiff in error a continuanceupon the showing made of the absence of defendant in error, and of C. J. Slater. By these witnesses, it was claimed, in this showing, that the insurance company would be able to show, in support of the averments of its answer, that its agent, Mr. Sutherland, did not, before the loss, place this risk with plaintiff in error, but that, after the fire, he received payment of the premium, and wrote up the policy sued on. As to the absence of Elijah L. Johnson, the defendant in error, it was shown that, previous to the time the application for a continuance was made, he had been a great while sick, and unable to leave his house for a long time; indeed, such was his condition when the insurance was effected. The verdict was returned and judgment rendered on November 7, 1891, and we find in the record a stipulation establishing the fact that Mr. Johnson died February 6, 1892. It is therefore specially worthy of note that there was no statement, in connection with the affidavits for a continuance, which would tend to establish any expectation that, if this cause had been continued, Mr. Johnson's evidence would ever have been procured. In relation, also, to Slater, there was no showing that his testimony would be procured if a continuance had been...