This was an action by the appellee against the appellant, begun before a justice of the peace of Center township, Marion county, for dam
After judgment in favor of the appellee, the case was appealed to the Marion Superior Court, where there was a trial by jury, and verdict and judgment for $175 in favor of the appellee. From this judgment, after a motion for a new trial was overruled, this appeal is prosecuted.
At the time of the trial, in the Marion Superior Court, the appellant filed his affidavit and motion for a continuance, which was submitted to and overruled by the trial court.
The errors relied upon for reversal are: (1) The court erred in overruling the motion of appellant for a continuance of this case. (2) The court erred in overruling appellant’s motion for a new trial. (3)' The judgment appealed from is not fairly supported by the evidence. (4) The judgment appealed* from is clearly against the weight of the evidence. (5) The verdict of the jury and the judgment entered thereon are not supported by sufficient evidence, and are contrary to law.
1. The first assignment of error is made one of the grounds for a new trial in the appellant’s motion therefor. The first, third, fourth and fifth assignments of error are not proper assignments.
“Affiant says that as soon as he learned said canse was set down for trial, be immediately caused a subpoena to be issued for said Roy Bryant, and tbe same was served by tbe sheriff of said county leaving a copy at tbe residence of tbe witness; that thereupon tbe sheriff informed this affiant that be learned when serving said subpoena that said witness was absent from home which was tbe first information that this defendant bad of tbe absence of said witness. That affiant went to tbe residence of said Roy Bryant and there learned that be bad been absent from home for several days and that bis mother with whom be resided did not know of bis whereabouts. Affiant further says that he then went to tbe place where said Roy Bryant bad been employed and there learned that said Roy Bryant bad not been at work for several days and that bis employer did not know of bis whereabouts. * * '* Affiant further says that Roy Bryant has been duly subpoenaed to attend this court as a witness and that be has expressed bis willingness to testify herein. ’ ’
It will be observed that tbe appellant has failed to state when bis cause was assigned for trial, when be learned such fact, when be caused tbe subpoena to be issued for tbe absent witness, when tbe same was served by tbe sheriff, when he received his first infor
In order that the appellant might be entitled to a continuance, it was incumbent upon him to show affirmatively that he had been duly diligent in his efforts to obtain the absent evidence, and to apprise the court that his efforts had been unsuccessful. In this, as appears by the affidavit, he has wholly failed. The motion for continuance was properly overruled. Ransbottom v. State (1896), 144 Ind. 250, 254, 43 N. E. 218.
3. 4. 5. Under the third assignment of error, appellant discusses at length errors which he insists the trial court committed in permitting, over the objections of the appellant, certain hypothetical questions and answers thereto, as to the value of the automobile involved. It is claimed by the appellant that the hypotheses upon which these questions were based, as appears by the evidence thereafter introduced, were not true. As heretofore noted, this is not a proper assignment, as the errors complained of pertain to the trial, and are not grounds for independent assignment of error. Elliott, App. Proc. §351. Even if properly assigned', the errors, if any, are not available to the appellant for the reason that, the appellee having failed, as appellant claims, to prove her hypotheses, he failed, after the appellee rested her case, to make a motion to strike out the answers to the hypothetical questions. Without this motion, the
Judgment affirmed.