Thornton

In a case where an application for continuance on the ground of the absence of a witness has been refused, “the party whose application has been refused should move for a new trial, and support the application by the affidavit of the absent witness, if such affidavits can be obtained, or it should be shown to the court that they cannot be obtained. Unless this be done this court will not interfere, in civil cases, with the action of the lower court”: Pilot Creek Canal Co. v. Chapman, 11 Cal. 162 . The granting or refusing of a continuance rests very much in the discretion of the court, and its action in such cases will not be reviewed except in cases of manifest abuse of such discretion: Musgrove v. Perkins, 9 Cal. 211 ; Frank v. Brady, 8 Cal. 47 . No such abuse of discretion is shown in this case. Nor was the affidavit of the absent witness procured, or the want of it accounted for on motion for new trial.

A jury was waived, under the statute, by a failure to file with the clerk six days before the commencement of the term a notice that a jury would be required: Laws 1863, p. 636, sec. 23. The case had been set down to be tried on the 7th by consent of parties, although it was…