The demurrer was waived by the subse*552quent answer, and no errors can be assigned in tbis court, upon tbe j udgment of tbe District Court overruling tbe same.
The motion for a continuance upon tbe affidavit of Elizabeth Peck, one of tbe defendants, was properly overruled. Tbe affidavit does not sbow tbat any diligence bad been used to obtain, by deposition or otherwise, tbe testimony of Elias R. Peck, to tbe facts which it is stated by tbe affidavit, tbe defendants could prove by no other person. It appears tbat the said Peck was unwell, and confined to bis bed. This fact may have been known in sufficient time, before tbe setting of tbe court, or before the trial, to have enabled tbe defendants to take bis deposition. As no reason or excuse for tbe failure is shown, there was no sufficient reason for a continuance.
Tbe remaining error assigned, is upon tbe overruling of tbe defendant’s motion to suppress tbe depositions of Head and Cook, taken by plaintiff. Tbe motion was based on tbe alleged insufficiency of tbe notice. Tbe notice was served on defendants, September 1st, "and informed them that tbe depositions would be taken September 6th, and they were taken on that day. It is claimed by defendants tbat, in addition to tbe five days intervening between tbe 1st and tbe 6th of tbe month, computing tbe time in accordance with tbe rule prescribed by tbe Code, (§ 2513,) they were entitled to one day in addition, as tbe time allowed for travel from the place where tbe notice was served, to the place where tbe depositions were to be taken. Code, § 2453. Tbe defendants do not sbow affirmatively, tbat they are entitled to tbe additional day allowed for travel. Tbe depositions were to be taken in Jasper county, where tbe suit was brought; and although it does not appear tbat they were to be taken at tbe seat of justice for tbe county, yet, on tbe other band, it does not appear tbat any travel was necessary to be made from tbe place where tbe defendant bved, or the place where tbe notice was served, to tbe place where, according to tbe notice, tbe depositions were to be *553taken. The duty of showing this, devolved on the defendants, before they could ask the court to suppress the depositions.
Judgment affirmed.