Wheeler, C. J. —As there is no statement of facts, the only question which can be deemed properly presented by the record for revision, is the refusal of a continuance. And it is questionable whether, in the absence of the evidence, that" question ought to be revised by this court. But if properly revisable, we are of opinion that the court did not err in refusing a continuance.' It does not appear that the subpoenas were served upon the witnesses Marsh and Shahan, in time to enable them to attend the trial in obedience thereto.
As to the witness Shahan, it does not appear by the affidavit that the plaintiffs had used any diligence to become informed of and to procure his testimony in time for the «trial. The judgment is affirmed. Judgment affirmed.