1. Refusal of a continuance of the trial was no abuse of discretion.
2. Refusal of injunction to prevent eviction under writ of possession was not erroneous.
No. 13721. JUNE 16, 1941. The facts as they appear from the petition, the answer, and the evidence as recited in the bill of exceptions, are as follows: Martha Jane Thomas died testate, devising certain land to her five *Page 420 children who survived her, A. L. Thomas, Sam Thomas, Mrs. Estelle Purvis, Mrs. Ruth Harrelson, and Mrs. Lula Mae Harrelson. The last named was nominated as executrix, qualified as such, and probated the will. A. L. Thomas resided on the land with his wife, and before the death of the testatrix he procured from her a deed conveying the land in dispute to his wife, Viola Thomas; and she and her husband refused to give possession to the executrix. Sam Thomas set up an adverse claim to some of the personal property, and A. L. Thomas claimed other parts of the personalty. Mrs. Lula Mae Harrelson, as executrix, brought suit against Viola Thomas, A. L. Thomas, Sam Thomas, Mrs. Estelle Purvis, and Mrs. Ruth Harrelson, to cancel the deed under which A. L. Thomas was claiming the land for his wife, for an accounting of rents and profits, and to recover the personalty for the purpose of administering the same as the estate of the testate under the terms of her will. A. L. Thomas and his wife and Sam Thomas filed defenses. The other defendants made no contest. That trial resulted in a verdict in favor of the executrix for recovery of the land and certain personal property as a part of the estate of the deceased, to be administered by the executrix under the terms of said will; and a decree was entered, enjoining all of the defendants from interfering with the taking possession by the executrix. No motion for new trial was filed, and no exception taken to the verdict or decree. Writ of possession was issued and placed in the hands of the sheriff for execution.
A. L. Thomas filed the present action to enjoin the sheriff and Lula Mae Harrelson, executrix, from entering on, taking possession of, or otherwise interfering with the land in question, and from disposing of or converting any part of said estate; for an accounting between the parties, appointment of a receiver, and other equitable relief.
At interlocutory hearing the plaintiff made a motion for a continuance because of the absence of two of his witnesses, he testifying that he did not know anything in particular that these witnesses would swear; that they just knew all the circumstances of the case from beginning to end. He further testified that he could swear to the same facts that he wished to prove by his absent witnesses. The court refused a continuance, and denied an injunction; and the plaintiff excepted. *Page 421 1. There was no abuse of discretion in overruling the motion to continue. When the case was first reached for trial on January 15, 1941, the plaintiff was ready for the trial to proceed, but the defendants were not ready, and the case was reassigned for a hearing on January 25, 1941, on which date the plaintiff moved for a continuance, on the ground that two of his witnesses, his sister-in-law and son-in-law, were both sick and could not be present. The plaintiff swore that he could not safely go to trial without them; that he did not consent for them to remain away; that they had promised to come to the hearing, and he and his counsel had relied on them. On cross-examination he testified, in part: "I do not know anything in particular the witnesses would swear. They just know the case and all its circumstances from the beginning to the end." In answer to a question from his attorney, he stated that he could prove by each of his witnesses that the allegations in his petition were true. The judge asked him if he could not testify to the same facts that he wished to prove by each of his witnesses; and the plaintiff answered that he could, but he wanted the witnesses.
2. There was no error in refusing an injunction. In a previous suit between the same parties on substantially the same issues, where the present plaintiff was a defendant, the jury found against him, and in favor of the plaintiff in that suit for the premises in dispute; and a decree having been entered, and no exception taken, the defendant (now plaintiff) is not entitled to an injunction preventing the sheriff from evicting him under a writ of possession issued as a result of the verdict and decree in the former suit.
Judgment affirmed. All the Justices concur.