Thompson & Scott v. Hart

KEF, O. J. (after stating the facts as above). [1, 2] We overrule appellants’ contention, and hold that no error was committed in refusing to grant the application for a continuance. In Hogan v. M., K. & T. Ry. Co., 88 Tex. 679, 82 S. W. 1035, a case somewhat similar to this, the rules relating to the question of diligence are discussed; and we refer to that case and the dissenting opinion in the Court of Civil Appeals, which was approved by the Supreme Court, in support of our conclusion in this case. The dissenting opinion referred to is reported in 30 S. W. 868. In the case at bar the application not only failed to state, in terms, that due diligence had been used, as required by the statute, but it failed to show what efforts Thompson & Scott or Goodson & Goodson had made to ascertain the whereabouts and secure the testimony of the absent witnesses prior to the beginning of Judge Goodson’s illness; which at the hearing of the motion for new trial was shown to have been about the middle of July. Appellants were served with citation about two months before the beginning of Judge Good-son’s illness; and it may be that, if proper diligence had been exercised, the depositions of the witnesses referred to could have been procured before Judge Goodson was taken ill. What, if anything, was done by the appellants or any one in their behalf during the two months’ time which elapsed between the service of citation and the illness of Judge Goodson, the application failed to show, and therefore it was insufficient. Therefore, conceding that Mr. Lawther exercised due diligence after he was employed, we feel compelled to hold that such diligence, prior to his employment, was not shown. Perhaps some of the other reasons stated by the trial judge were sufficient to justify his action. We also hold that the court did not abuse its discretion by trying the case in the absence of Mr. Lawther. No error has been shown, and the judgment is affirmed. Affirmed.