Partlow v. Mitchell

• Decision Date: 06 March 1919
• Docket Number: No. 9777.,9777.
• Citation: 122 N.E. 340,69 Ind.App. 505
• Parties: PARTLOW v. MITCHELL.
• Court: Indiana Appellate Court

69 Ind.App. 505

122 N.E. 340

PARTLOW

v.MITCHELL.

No. 9777.

Appellate Court of Indiana, Division No. 2.

March 6, 1919.

Appeal from Superior Court, Marion County; Clarence E. Weir, Special Judge.

Action by Ada Mitchell against John L. Partlow in a justice court. There was judgment for plaintiff on appeal to the superior court, and defendant appeals. Affirmed.

Born, Ritchey & Cronk, of Indianapolis, for appellant.

Salem D. Clark, of Indianapolis, for appellee.

NICHOLS, J.

This was an action by the appellee against the appellant, begun before a justice of the peace of Center township, Marion county, for damages alleged to have been sustained by reason of the appellant having permitted an automobile of the appellee, which appellee had stored with the appellant, to be taken from appellant's garage, contrary to the alleged instructions of the appellee, and during the time that it was out it was damaged.

After judgment in favor of the appellee, the case was appealed to the Marion superior court, where there was a trial by jury and verdict and judgment for $175 in favor of the appellee. From this judgment, after a motion for a new trial was overruled, this appeal is prosecuted.

At the time of the trial, in the Marion superior court, the appellant filed his affidavit and motion for a continuance which was submitted to and overruled by the trial court.

The errors relied upon for reversal are:

(1) The court erred in overruling the motion of appellant for a continuance of this case.

(2) The court erred in overruling appellant's motion for a new trial.

(3) The judgment appealed from is not fairly supported by the evidence.

(4) The judgment appealed from is clearly against the weight of the evidence.

(5) The verdict of the jury and the judgment entered thereon are not supported by sufficient evidence and are contrary to law.

The first assignment of error is made one of the grounds for a new trial in the appellant's motion therefor.

The first, third, fourth, and fifth assignments of error are not proper assignments.

[1] Under the second assignment of error, appellant complains of the ruling of the court on his motion for a continuance. As appears by the record, the affidavit with motion was filed upon the day that the cause was called for trial. So much of this affidavit as is necessary for this decision is as follows:

“Affiant says that, as soon as he learned said cause was set down for trial, he immediately caused a subpœna to be issued for said Roy Bryant, and the same was served by the sheriff of said county leaving a copy at the residence of the witness; that thereupon the sheriff informed this affiant that he learned when serving said subpœna that said witness was absent from home, which was the first information that this defendant had of the absence of said witness; that affiant went to the residence of said Roy Bryant and there learned that he had been absent from home for several days, and that his mother with whom he resided did not know of his whereabouts. Affiant further says that he then went to the place where said Roy Bryant had been employed, and there learned that said Roy Bryant had...