Hawes

Hawes obtained a judgment against Clark, based upon two promissory notes. From that judgment, and an 'order denying a new trial, the defendant appeals.

*274 Appellant claims that the trial court should have granted the motion for a new trial, made in his behalf, because it was guilty of an abuse of discretion in not granting a continuance on the ground of the inflamed condition of the eyes of his counsel. The court saw the counsel and his condition at the time the application was made, and was a further witness to the fact that, notwithstanding his alleged disability, he immediately proceeded to participate and conduct the trial in person. Under this state of facts, we cannot agree with the defendant’s contention on that point.

It is next urged in behalf of the appellant that the court erred in refusing to grant a jury trial, as there was mo legal waiver of such trial. The facts surrounding the transaction seem to be that the cause was peremptorily set for trial on the 16th of April,. 1888, in a certain department of the superior court for the city and county of San Francisco. The defendant’s counsel was desirous of having it transferred to another department of that court, so…