Cottonniere v. White, Jackson & Co.

TALBOT, J. The plaintiff in error, Cam-pagnie Cottonniere, a French corporation, brought this suit against the. defendants in error, G. L. White, W. E. Jackson, and W. C. Robertson, doing business under the firm name of White, Robertson & Co., to recover the sum of $2,074.44, alleged to be due on account of shortage in grades of cotton sold by the defendants in error as indicated by the grade of the cotton upon its receipt in Europe, and also for alleged shortage of the weight of the cotton. The original petition appears to have been filed July 8, 1913. In lieu of this petition an amended petition was filed the 28th day of November, 1913. The defendants in error filed answer September 1, 1913. At the January term of the court, 1916, and on February 15, 1916, upon an instructed verdict judgment was rendered in favor of the defendants in error. Motion for new trial was overruled February 18, 1916. Petition for writ of error and writ of error bond were filed on the 9th day of February, 1917, and transcript filed in this court March 31, 1917. [1] The single assignment of error presented is as follows: “Because the court erred in overruling plaintiff’s motion for a continuance as shown by plaintiff’s bill of exception No. 1.” This bill of exception appears to have been filed in the district court February 9, 1917, nearly one year after the judgment from which the writ of error is prosecuted was rendered. The statute allows only 30 days after the day of the adjournment of the court at which the judgment appealed from is taken in which to file bills of exception unlesg an extension for such filing is granted by an order of the court. No extension of time for the filing of bills of exception appears tó have been granted, and no reason whatever is shown why the one in question was not sooner filed. The bill cannot therefore be considered in this court and the action of the district court in overruling what pur *907 ports to be an application of tbe plaintiff in error for a continuance be reviewed. [2] That tbe refusal of an application for a continuance by tbe trial court can be revised on appeal in this state only when ex-' ception is reserved to sucb refusal and presented in a bill of exceptions is too well settled to require tbe citation of authorities; but of tbe many cases to that effect see the following: Morris v. Files, 40 Tex. 375; Philipowski v. Spencer, 63 Tex. 604; Railway Company v. Mallon, 65 Tex. 115. Tbe judgment is affirmed. Footnotes [1] (SnwEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes