#### A. M. Bergevin v. Frank G. Barnard.

1. Practice—Affidavit for Continuance Held Not Sufficient.—On a cause being called for trial on the first day of February, 1897, the defendant moved for a continuance and filed an affidavit- in support of the motion in which it was stated that the defendant was absent in California and would not return until about the first day of March, 1897; that the suit was based on a gambling contract, that the defendant had a good and adequate defense to the suit, and that it would be dangerous for him tó go to trial at that time. Held, on appeal, that a continuance was properly refused.

Transcript, from a justice of the peace. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in this court at the March term, 1897. Affirmed. Opinion filed October 11, 1897.

William E. O’Neill, attorney for appellant.

D. M. Kirton, attorney for appellee.

Per Curiam.

This suit was brought on the 29th day of July, 1895, before a justice of the peace in and for the county of Cook. The defendant did not appear at the hearing of said cause, and a judgment was rendered against him for $197.50 and costs of suit; from which judgment the defendant appealed to the Circuit Court of Cook County.

When the cause was reached, on the 1st day of February, 1897, appellant moved the court to continue the same, and filed therein his affidavit for a continuance, in which he stated that the defendant was absent in California, and would not return until about the first day of March, 1897, and that the said suit was based upon a transaction on the open board of trade, and was a gambling contract, and that the defendant had a good and adequate defense to said suit, and it would be dangerous for the defendant to go to trial at that time. The court denied the motion, and the issues were submitted to a jury, who found a verdict for *48the plaintiff in the sum of $214.72. The court refused to grant the defendant’s motion for a new trial, and also his motion in arrest óf judgment, and an appeal was prayed to this court. There was no testimony introduced at the hearing of said cause on behalf of the defendant.

The affidavit filed by appellant was clearly insufficient to entitle him to a continuance, and it does not appear from the record that any exception was taken to overruling the motion for a continuance.

We have examined the evidence presented upon the trial, and find in it no sufficient reason for reversing the judgment of the Circuit Court.

Appellant excepted to the refusal of the court to give certain instructions asked for by him. There was no evidence on which to base the instructions, and they were properly refused.

The judgment of the Circuit Court is affirmed.