
    Saml. Wilson et al. v. J. D. Elliott et al.
    New Trial — Defective Petition — Demurrer — Amended Petition — Bill of Exceptions.
    The only averment in the petition is “ that Wilson had prepared for the defense of the suit by summoning witnesses by whom he could have established a defense.” It was not stated that they could establish a defense if a new trial should be awarded. Held, that unless the facts had been stated in the petition, which appellant believed that witnesses would prove, so as to enable the court to adjudge of the materiality of the evidence, a new trial should not be awarded. '
    Amended Petition — Bill of Exceptions.
    In the absence of a bill of exceptions incorporating an amended petition, this court will presume that the court below decided correctly in refusing to permit it to be filed.
    APPEAL PROM LARUE CIRCUIT COURT.
    February 18, 1867.
   Opinion oe the Court by

Judge Peters:

If it be couceded that the facts set forth in. the answer present a valid defense to the action, and that appellants satisfactorily accounted in their petition for a new trial for their failure to attend the trial of their cause, and to communicate with their attorneys and forward to them an affidavit showing that they were prevented by sickness to attend court, whereby they might have procured a continuance of their cause, still their petition was fatally defective in failing to disclose the facts they would prove by the witnesses to be introduced by them. The only averment in the petition in relation to the evidence is “ That said Wilson had prepared for the defense of said suit, by summoning witnesses, some of whom were present, and some were not at the time of judgment, by whom he could have established said defense.” Whether they would be able to establish said defense, if a new trial should be awarded them, they do not state. Unless the facts had been stated which appellants believed the witnesses would prove, so as to enable the court to judge of their materiality, a new trial should not be awarded. Picket v. Ricket, 2 Bibb, 178.

Murray, for Appellant.

Bead, for Appellees.

After a demurrer had been properly sustained to said petition a motion was made by appellants to be permitted to file an amended petition, which motion was overruled, and of that they complained.

With respect to the amended petition the record presents no evidence upon which we can base any action; a paper purporting to be an amended petition, with some depositions, is transcribed in the record, which may possibly be copies of those offered; but there is no bill of exceptions incorporating them, or referring to them so as to make them a part of the record, and in the absence of such a bill of exceptions this court must presume the court below decided correctly in refusing to permit them to be filed. Falkner v. Wilcox, 2 Litt. 369.

We cannot say that the appellants showed sufficient grounds for a continuance of the cause, or that the court below erred in ruling them into trial.

Wherefore, the judgment is affirmed.

Judge Hardin did not sit in this case.  