
    W. E. Riley v. A. J. Cocanaugher.
    Continuance — Absence of Unsubpoenaed Witness.
    Where plaintiff and defendant announced themselves ready for trial and the trial progressed until plaintiff was ready to examine a witness which had not been subpoenaed, and who had -left the town since the trial had 'begun, plaintiff was guilty of negligence- and miust suffer the consequences.
    APPEAL PROM WASHINGTON CIRCUIT COURT.
    October 17, 1873.
   Opinion by

Judge Pryor:

Settles, an important witness for the appellant, had never been summoned by him, although his statement on a former trial declared the necessity of having his evidence before the jury. Both parties announced themselves ready for trial and the case progressed until the appellant proposed to examine Settles, who, it seems, had then left the town. This witness was not in attendance upon any summons to testify for appellant, and committed no contempt of court in leaving. Appellant and his counsel knew what he would state and could not have been surprised at the testimony of the appellee, as the latter had made the same statement in his petition, and the issue really was whether this corn had been delivered. The appellant must suffer by reason of his laches. The verdict should have rendered in gross, and this court can not adjudge the damages to be excessive. This is the second time this case has been in this court, and the damages awarded as smart money-are not now more than sufficient to pay the cost. There is no error in the record to appellant’s prejudice.

■ W. E. Riley, for appellant.

Brozjsns & Lezvis, Harrison & Knot, for appellee.

Judgment affirmed.  