Summary
noting that, without evidence of what the absent witness's testimony would be, “it cannot be affirmed that the overruling of the motion was prejudicial error, nor that it was an obvious and palpable abuse of the trial court's discretion”
Summary of this case from State v. ThomasOpinion
6 Div. 721.
March 24, 1927.
Appeal from Circuit Court, Lamar County; Ernest Lacy, Judge.
J. C. Milner, of Vernon, for appellant.
Counsel argues for error in the rulings assigned, but without citing authorities.
R. G. Redden, of Vernon, for appellees.
Brief of counsel did not reach the Reporter.
If, as testified by defendants, plaintiff advanced to defendants $15 per thousand, and guaranteed to them a price of not less than $17 per thousand for the two carloads of lumber, though plaintiff was handling it on a commission basis, and not as a purchaser, it is obvious that a balance was due to defendants of $2 per thousand on the aggregate of nearly 40,000 feet. Hence the requested instructions numbered 3 and 4 were properly refused, as ignoring that phase of the evidence.
In support of its motion for a continuance or postponement of the trial in order to secure the presence of Holsapple as a witness, in contradiction of defendants' testimony that the transaction as to the lumber was with him, there was no showing made as to what Holsapple's testimony would be, if present. Hence it cannot be affirmed that the overruling of the motion was prejudicial error, nor that it was an obvious and palpable abuse of the trial court's discretion. Knowles v. Blue, 209 Ala. 27, 32, 95 So. 481. In such a case, the proper practice would be to also move for a new trial on the ground of surprise, with proof that Holsapple's testimony would, in fact, substantially contradict defendants' testimony as to their alleged transaction with him. Hoskins v. Hight, 95 Ala. 284, 11 So. 253.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.