
    No. 19,882.
    John F. Hanson, Appellant, v. The Missouri Pacific Railway Company, Appellee.
    
    SYLLABUS BY THE COURT.
    
      Motion for Continuance — Absent Evidence — No Diligence Shown. Where a plaintiff moves for a continuance on the ground that on account of his poverty he has not been able to look up the evidence and find witnesses to prove his ease, a denial of the motion is justified by evidence that he had brought a previous action on the same cause, which he had dismissed when it whs brought to trial, suing again just before the expiration of a year.
    Appeal from McPherson district court; Frank F. Prigg, judge.
    Opinion filed February 12, 1916.
    Affirmed.
    
      John F. Hanson, of Lindsborg, for the appellant.
    
      Frank 0. Johnson, of McPherson, W. P. Waggener, and Walter E. Brown, both of Atchison, for the appellee.
   The opinion of the court was delivered by

Mason, J.:

John F. Hanson sued the Missouri Pacific Railway Company before a justice of the peace, on account of property alleged to have been destroyed in the spring of 1910, by fire caused by its negligence. No appearance was made by the defendant and judgment was rendered for the plaintiff. An appeal to the district court was taken on August 5, 1913. On December 2, 1913, the plaintiff moved for a continuance over the term on the ground, supported by his affidavit, that by reason of his poverty he had been “unable to look up all the evidence in the case and find suitable witnesses to prove the issues,” or to pay the expenses of witnesses, or to take depositions. On the same day the defendant’s attorney orally stated some facts with regard to the history of the case, and the court overruled the motion. Five days later the defendant’s attorney, with the consent of the court, filed an affidavit purporting to cover the same ground as his oral statement. Hanson filed a counter-affidavit. On December 10, 1913, the day on which the case had been set for trial, it was called, and as the plaintiff did not appear, it was dismissed for want of prosecution. The plaintiff appeals.

The substance of the statement made in behalf of the defendant is this: About April, 1912, the plaintiff sued the defendant upon the same cause of action before a justice of the peace. The case was continued twice, the second continuance being at the request of the plaintiff to give him time-to obtain his evidence. At the trial the plaintiff introduced some hearsay evidence, but perceiving that the justice was going to rule against him, dismissed the case without prejudice.. The present action was brought a few days short of a year after the dismissal.

Complaint is made because the defendant’s attorney was permitted to file his affidavit after the motion for a continuance had been denied. It was proper to consider the attorney’s oral statement at the hearing of the motion, and to allow it later to to be reduced to writing, verified and filed. The evidence warranted the conclusion that reasonable diligence had not been shown in preparing for trial. The refusal of a continuance was clearly within the discretion of the trial court, and the dismissal was the necessary result of the plaintiff’s failure to prosecute.

The judgment is affirmed.  