
    The City of Topeka v. Rebecca A. Pert.
    No. 15,113.
    (91 Pac. 1132.)
    Error from Shawnee district court; Alston W. Dana, judge.
    Opinion filed July 5, 1907.
    Affirmed.
    
      F. G. Drenning, city attorney, and W. C. Ralston, assistant city attorney, for plaintiff in "error.
    
      Hazen & Gaw, for defendant in error.
   Per Curiam:

No substantial error was committed in requiring the city to go to trial at the term the trial was had. Both parties mistakenly proceeded on the theory that the defendant was in default, but the demurrer of the city, which was filed by consent of the plaintiff, was adjudged to be frivolous, and hence the case then stood as if no demurrer had been filed. Neither the ruling on the demurrer nor that denying the motion for a continuance furnish ground for complaint. The time subsequently given for answer and preparation for trial was brief, but an examination of the record satisfies us that no injustice was done to the city in requiring a trial at that term. The affidavit for a continuance, setting forth the absent testimony, was treated as a deposition, which the city was- privileged to introduce but did not. No error was committed in the admission of testimony nor in the rulings on instructions. ,

The judgment is affirmed.  