
    The Prudential Insurance Company v. DeBord.
    [No. 2,125.
    Filed March 12, 1897.]
    New Tbial. — Sufficiency of Affidavit in Support of Motion When Party Claims to Have Been Misled by Court as to Time of Trial.— A motion for a new trial on the ground that defendant was misled by the statement of the court that the cause would be continued indefinitely, is properly overruled, where the affidavits in support of the motion do not show that a motion for a continuance was made, and that the defendant had a good and meritorious defense to the action.
    From the Vigo Circuit Court.
    
      Affirmed.
    
    
      M. O. Hamill, for appellant.
    
      P. M. Foley and I. Tomer, for appellee.
   Henley, J.

The only error assigned by appellant herein is the alleged error of the lower eonrt in overruling appellant’s motion for a new trial. The motion for a new trial is based solely upon the fact, as contended by appellant, that the court misled appellant and appellant’s counsel as to when this cause would be tried. In support of the motion and as a part of the same, were filed the affidavits of counsel for appellant and the affidavit of appellant’s agent, William T. Jones, stating therein the following facts and circumstances, viz.: That, on the-day of January, 1896, the cause was set for trial in the Vigo Circuit Court, at which time said Jones appeared, representing the defendant, and together with his attorneys, was present and ready for trial; that at said time another cause was on trial and being heard by the court, and the court informed affiant that this cause would be tried the next day; that affiant was present with his counsel on the next day, but on account of the same cause, as before stated, the court said that this cause would be continued until the following day; that on the following, or the next day thereafter, appellant and counsel, finding the court yet engaged in the trial of other causes, went to the court and informed the court that affiant had business for the following day, and that appellant’s counsel, Mr. Beecher, told the court that he had a cause set for trial at Sullivan on the-day of January, and that he had arranged to leave on the following afternoon to consult about the case, and it was impossible for him to get ready for the trial, and that the court then said to affiant that he would continue and pass the case indefinitely; that relying on the statement of the court, affiant instructed the witnesses to go, and he would notify them when they were wanted; that said conversation occurred about 9 o’clock a. m., aud that about tbe hour of 3 o’clock p,. m. affiant received notice to appear before tbe judge at tbe court bouse; that tbe judge tben informed affiant that tbis cause would be tried. Affiant tben, through appellant’s counsel, who were present, informed tbe court that relying on tbe statements of tbe court made in the morning, important business engagements bad been made for tbe following day, and tbe court informed affiant that unless they would agree to try tbe cause tbe following day be would order tbe same tried at once. That affiant, through tbe counsel for appellant, informed tbe court that it would be impossible for him to make arrangements to be present tbe following day. That tbe court ordered tbe cause to be tried, which was done, tbe evidence of appellee beard and tbe jury returned a verdict for appellee; that relying on tbe statements of tbe court, appellant’s evidence was not before tbe jury.

Tbe other affidavits are substantially tbe same and we set out tbe substance of tbe affidavit of the man Jones, because it is admitted that be was tbe agent for appellant and was at tbe time acting for appellant in tbe matter.

It will be observed that tbe affidavit of appellant’s agent nowhere states that appellant bad a valid defense to tbis action; that it wholly fails to point out to the court any defense that appellant might have made if tbe motion for a new trial bad been sustained. It also shows that at tbe time of tbe trial appellant was, by her agent and attorneys, in tbe court room, and it nowhere shows that tbe court refused or prevented tbe appellant filing a motion and affidavit for a continuance.

In these important particulars tbis cause differs materially from tbe case of Edsall v. Ayres, 15 Ind. 286. Applications for new trials are always addressed to the sound discretion of the court before whom the cause was tried, and its decision will be presumed to be correct and in accordance with the justice and merits of the case, unless in the exercise of such discretionary power the court has plainly committed an error prejudicial to the rights of the complaining party.

It would seem to us that the affidavit of appellant’s agent in support of the motion for a new trial, under the circumstances stated in the affidavit, ought to have informed the court not only that appellant had a good and meritorious defense to this action, but it should have set out specifically what the defense was, so that the court might determine whether any good would come from a retrial of the cause.

If we treat the judgment in this cause as a judgment by default, with appellant and counsel not present at the time it was taken, still in a motion to set aside such default ‘counsel for appellant would not contend that such motion would be sufficient unless it contained the specific statement of a valid defense. The record in this cause shows a trial and verdict by a jury. To set this verdict aside, appellant’s counsel cannot contend that less would be required of them than would be required in the setting aside of a default.

We find no error in the record".

Judgment affirmed.  