Greenburg v. Saul , 91 Miss. 410 ( 1907 )

Calhoon, J.,

delivered the opinion of the court.

Greenburg was sued by appellees on their sworn account. Not only was it sworn to, but, on deposition, the account was otherwise proved. There was no counter-affidavit denying the correctness of the account and particularizing wherein it was incorrect. The only defense is stated on oath by Green-burg “ that he does not owe the above account, or any part thereof, but that the same has been fully paid.” In this condition it devolved upon Greenburg to affirmatively prove payment. We find no testimony in the record to this effect. Disregarding the statute, the plaintiffs below having proved their case, a judgment for them could only he prevented by proof of payment.

The point is made in the motion for a new trial and in the ■ assignment of errors that the court refused to continue the-case. The trouble about this is that the clerk certifies that there was no such motion on file in the case; and, Greenburg having brought this case here, it was his duty to have that in the record, or its absence accounted for, and a substitution.

Affirmed.