Burkhart v. Merry , 88 Ind. 438 ( 1882 )

Bicknell, C. C.

— This was a suit by the appellee against the appellants upon two notes and a mortgage. The appellant Regina failed to appear, and was defaulted. The appellant William H. answered, claiming credits and averring payment. The appellee replied in denial. Afterwards William H. withdrew his appearance. The damages were assessed by a jury and judgment of foreclosure was rendered against both ■defendants, with a personal judgment against William H.

The appellants assign several errors, but discuss in their brief only two of them, viz.:

1. Thecourterredinoverrulingthemotion for a continuance.

2. The court erred in overruling the motion to set aside the default and judgment.

Upon the day set for the trial of the cause, the attorney of the appellants made and filed an affidavit, stating that the appellant Regina had a disease of the heart, and that both the ■appellants had gone twelve miles into the country, expecting to return on the day of trial; that on said day and the day before the weather had been very inclement, and there was no way to reach the city of Terre Haute except by a wagon road; that defendants have a meritorious cause of defence to the action, as they believe, and that no particular injury or •damage would result from, a continuance of the cause.

This affidavit was insufficient. For aught that appears therein, both the appellants may have been in town on the day of trial. It does not aver that the presence of either of the appellants was necessary as a party or as a witness. For aught that appears therein, the attorney could have conducted the defence without the presence of either of them.

In Deming v. Ferry, 8 Ind. 418, this court said: “We have repeatedly held that the propriety of refusing or granting continuances depends so much upon the discretion of the court to whom the motion is made, that it must be a very strong case that would induce this court to revise a decision on that subject.” There was no error in overruling the motion to ■continue. Chamberlain v. Reid, 49 Ind. 332; Pate v. Tait, 72 Ind. 450.

The affidavit on which the motion to set aside the default was founded was made by the defendant William H. Burk-hart, who had pleaded that his notes were entitled to credits, and had withdrawn his appearance. His wife had failed to appear. The affidavit stated that the affiant’s wife, his co-defendant, had a disease of the heart, which was liable to be aggravated by exposure to inclement weather; that on the 14th day of March she went into the country fourteen miles to attend the confinement of her sister-in-law, expecting to return in time for the trial on March 30th; that from March 25th until midnight on March 31st the weather was so inclement that she could not return without danger to her life; that she can show credits which ought to have been takers into account by the jury in assessing the damages on the notes5 in suit, and that her failure to attend the trial was not for the purpose of delay.

It does not appear by this affidavit that the alleged credits were to be shown by the testimony of the wife, nor that any diligence had been used to secure her attendance, if she was. to be a witness, nor that her presence was necessary in order that such credits should be shown, or to give any information, to her husband’s attorney in reference to such credits, or to-affect in any way the assessment of damages. There was no error in refusing to set aside the default and judgment.

The judgment should be affirmed.

Per Curiam. — It is therefore ordered, on the foregoing-opinion, that the judgment of the court below be and the same is hereby affirmed, at the costs of the appellants.