
    28145.
    Reynolds v. Sanders.
    Decided May 1, 1940.
   Broyles, C. J.

L A ground of the motion for new trial is based upon the refusal of the court to grant a continuance of the case on the motion of the movant. It appears from the order of the judge overruling the motion for new trial that the case had theretofore been twice continued on motion of the defendant. Furthermore, the evidence on the hearing of the motion (based upon the alleged illness of the movant) was insufficient to show that he was not physically or mentally able to attend court. The judge did not abuse his discretion in denying a continuance.

2. Another ground of the motion for new trial excepts to the overruling of a motion by counsel for the defendant to declare a mistrial, because of an alleged irrelevant and prejudicial statement made by the plaintiff while he was on the witness stand. The ground shows that the court excluded the statement from the evidence, and instructed the jury to disregard it. Moreover, the only evidence in the case was the undisputed testimony of the plaintiff, and that evidence demanded the verdict returned by the jury. This being true, the alleged irrelevant and prejudicial statement of the plaintiff, which was excluded from the evidence, was not harmful to the defendant’s cause. The overruling of the motion to declare a mistrial, even if error, was not harmful error.

3. As stated above, the verdict was demanded by the evidence, and the refusal to grant a new trial was not error.

Judgment affirmed.

MacIntyre and Querry, JJ., concur.

Will Ed Smith, for plaintiff in error.

A. B. Boss, B. B. Williams, contra.  