
    Adams v. Peck.
    Where a demurrer is waived by the filing of an answer, no errors can be assigned in the appellate court, upon the judgment of the District Court, overruling the demurrer.
    An affidavit for a continuance, on the ground of the absence of witnesses, that does not show that any diligence has been used to obtain the testimony of such witnesses, nor any excuse for the want of-such diligence, is insufficient.
    Where a motion is made to suppress depositions, on the ground that the party was not allowed time for travel, from the place where the notice was served, to the place where the depositions were to be taken, in addition to the five days’ notice allowed by the statute, the party making the motion, must show affirmatively that he is entitled to the additional time allowed for travel. »
    
      Appeal from the Jasper District Court.
    
    This was a suit against husband and wife jointly, for tbe price of goods, ware and merchandise alleged to have been sold and delivered to tbem, for tbe use of tbeir family. A demurrer to tbe petition was overruled. The defendants tben filed their answer, denying any indebtedness to 'plaintiff as charged. A motion to suppress depositions taken by plaintiff, and a motion by defendants for a continuance, were overruled. Judgment for the plaintiff for $288.56. Defendants appeal. The other facts are sufficiently stated in the opinion of the court.
    
      S. A. Dice & W. B. Sloan, for the appellants.
    No appearance for plaintiff.
   Stockton, J.

The demurrer was waived by the subsequent answer, and no errors can be assigned in tbis court, upon tbe j udgment of tbe District Court overruling tbe same.

The motion for a continuance upon tbe affidavit of Elizabeth Peck, one of tbe defendants, was properly overruled. Tbe affidavit does not sbow tbat any diligence bad been used to obtain, by deposition or otherwise, tbe testimony of Elias R. Peck, to tbe facts which it is stated by tbe affidavit, tbe defendants could prove by no other person. It appears tbat the said Peck was unwell, and confined to bis bed. This fact may have been known in sufficient time, before tbe setting of tbe court, or before the trial, to have enabled tbe defendants to take bis deposition. As no reason or excuse for tbe failure is shown, there was no sufficient reason for a continuance.

Tbe remaining error assigned, is upon tbe overruling of tbe defendant’s motion to suppress tbe depositions of Head and Cook, taken by plaintiff. Tbe motion was based on tbe alleged insufficiency of tbe notice. Tbe notice was served on defendants, September 1st, "and informed them that tbe depositions would be taken September 6th, and they were taken on that day. It is claimed by defendants tbat, in addition to tbe five days intervening between tbe 1st and tbe 6th of tbe month, computing tbe time in accordance with tbe rule prescribed by tbe Code, (§ 2513,) they were entitled to one day in addition, as tbe time allowed for travel from the place where tbe notice was served, to the place where tbe depositions were to be taken. Code, § 2453. Tbe defendants do not sbow affirmatively, tbat they are entitled to tbe additional day allowed for travel. Tbe depositions were to be taken in Jasper county, where tbe suit was brought; and although it does not appear tbat they were to be taken at tbe seat of justice for tbe county, yet, on tbe other band, it does not appear tbat any travel was necessary to be made from tbe place where tbe defendant bved, or the place where tbe notice was served, to tbe place where, according to tbe notice, tbe depositions were to be taken. The duty of showing this, devolved on the defendants, before they could ask the court to suppress the depositions.

Judgment affirmed.  