Murphy v. Hood Lumley

Opinion of the court by This was an action brought by Hood and Lumley, defendants in error, against the plaintiff in error in the district court of Lincoln county, to recover the value of a certain stock of goods and merchandise alleged to have been wrongfully attached by the defendants in error and converted to their own use. The plaintiffs in error alleged in their answer that the goods were wrongfully taken under the writ of attachment, that the stock of goods was the property of Morrison, that Morrison was insolvent and in failing circumstances; and that Hood and Lumley, with knowledge thereof, purchased the said goods with the intent of aiding and assisting Morrison in defrauding his just creditors. The defendants in error, plaintiffs in the court below, denied all the material allegations alleged in the answer of the defendants, and further alleged that the goods were purchased from Morrison for a valuable consideration, in good faith, and without any knowledge of the frauds alleged in defendant's answer. Upon the issue thus joined the cause was tried to a jury, and a verdict returned for the plaintiffs. From this judgment the defendants appeal.

The plaintiffs in error seek to reverse the judgment of the court upon the following grounds: (1), That the court erred in overruling the application of the defendants for a continuance of the cause; (2), That the verdict of the jury is not sustained by the evidence and is contrary to law, and (3), That the court erred in refusing to give instruction number two requested by the defendants. It is the settled law of this court, and is the universal rule, that the granting or refusing to grant a continuance of a cause rests largely in the sound discretion of the trial court, and such ruling will not be disturbed by the appellate court, unless it clearly appears that there is an abuse of discretion. Section 329 of our civil code provides as follows:

"A motion for a continuance, on account of the absence of evidence, can be made only upon affidavit, showing the materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it, and where the evidence may be; and if it is for an absent witness, the affidavit must show where the witness resides, if his residence is known to the party, and the probability of procuring his testimony within a reasonable time, and what facts he believes the witness will prove, and that he believes them to be true."

We think the application is insufficient in several material matters. It fails to show due diligence to procure the testimony of the absent witness; it fails to show that the same facts could not be proven by other witnesses; it fails to show that there is any probability of procuring the testimony of the absent witness within a reasonable time; and it did not state the facts in a clear and concise manner which the defendant expected to prove by the absent witness. Where a party applying for a continuance desires the evidence of an absent witness it is essential that he should state the facts which he expects to establish by the witness, as he is required to state them if he were taking the deposition of such witness. In other words, mere conclusions of fact or law do not satisfy the requirements of the statute. The evidence should be clearly and concisely stated, in order that the materiality of the testimony may clearly appear to the court. The showing was insufficient and, therefore, the application for continuance of the cause was properly denied.

It is next claimed that the evidence is insufficient to sustain the verdict. There is no merit in this contention. Thebona fides of the transfer or sale was a question of fact that was submitted to the jury under appropriate instructions of the court. We have examined the evidence, and it is sufficient in every respect to sustain the finding of the jury, and it is the settled rule of this court that where the evidence reasonably sustains the findings of the jury, it will not be disturbed by this court.

And lastly it is contended by plaintiffs in error that the court erred in refusing to give instruction number two requested by the defendants. We think this instruction was rightfully refused by the court. It is not only misleading but it does not correctly state the law as applied to the evidence in this case. It did not state all the material facts necessary to be found in plaintiff's favor to entitle them to a verdict, as required by the instruction. Hood and Lumley were in actual possession of the stock of goods before the attachment was levied and this was not a controverted question on the trial of the cause. The general charge of the court fully and fairly stated every proposition of law applicable to the case. There was no error in the instructions.

Finding no error in the record prejudicial to the right of the plaintiffs in error, and believing that substantial justice has been done, the judgment of the district court of Lincoln county is affirmed.

Burford, C. J., who presided in the court below, not sitting; all the other Justices concurring.