Wilson v. Zook

Citations

• 69 Miss. 694

Syllabus

<p>1. Practice. Continuance. Unavailing effort to get testimony.</p> <p>Where one asks for a continuance because of the absence of a certain book, which he is desirous of using in evidence to establish material facts, and it appears that the book was left with a person who testifies that she had made search for it without success, but had afterwards found another book, which she delivered to a third person, who was absent ; and it appears that a subpoena duces tecum to these persons for the production of the book desired would be unavailing, and it is not suggested that inquiry in any other direction would discover the book, it is proper to refuse the continuance.</p> <p>2. Supreme Court. Verdict. When not disturbed.</p> <p>Where a recovery is had upon an account, which the plaintiff’s testimony shows was made up and delivered to him by an employe of the defendant, and the plaintiff testifies that all items thereon, up to a certain date, are correct to his personal knowledge, and the verdict in favor of plaintiff is for a less amount than is shown to have been due at that date, disregarding subsequent items claimed by him, the supreme court will not disturb the verdict as excessive, though there are facts tending to show that the recovery is for too much.</p> <p>3. Same. Instruction granted both parties: Estoppel.</p> <p>One cannot assign for error the action of the trial court in giving an instruction for the opposite side, when he asked and obtained, as announcing the law of the case, an instruction to the same effect. Insurance Co. v. VanOs, 03 Miss., 431.</p>