Swift's Iron & Steel Works v. Dye ( 1871 )

Opinion by

Judge Peters :

The bill of exceptions does not contain a statement that all the evidence introduced on the trial is embodied therein, so that whether or not the verdict of the jury is sustained by the evidence cannot be considered by us.

The third instruction so qualifies the first, and second, as to present correctly the law of the case to the jury arising on the issues made by the pleadings.

It is not sufficient to authorize the continuance of a cause when an amended petition is filed for the party to state that he is surprised by the amendment; but the Civil-Code requires that the court shall be satisfied by affidavit or otherwise that the adverse party could not be ready for trial in consequence of the amendment and in order to enable this court to determine whether the court below abused its discretion in overruling the appellant’s motion for a continuance when the amended petition was filed, the facts should be presented in the form of an affidavit or otherwise in a bill of exceptions which would show that appellant could not be or was not ready for trial at that time. Such facts are not presented in this record. C. C. Sec. 163.

Webster, for appellant. O. W. Root, for appellee.

Wherefore the judgment must be affirmed.