Harrison v. Cotton

Bell, J. It is assigned as error that the court below refused to continue the cause on the motion of the plaintiff in error. We have repeatedly declined to revise the ruling of the court below, refusing a continuance, unless the party who seeks a reversal of the judgment on that ground has reserved the point by a bill of exceptions. It is undoubtedly the correct practice to [54] take a bill of exceptions in all cases where the refusal of the District Court to grant a continuance will be relied upon in this court as ground for the reversal of the judgment. (See Champion v. Angier, 16 Tex., 93.) We have frequently announced this rule of late, without giving any written opinion on the point, because there are reported cases in which the rule was announced. We desire to call the attention of the bar distinctly to the correct practice on this subject. The reason of the rule is obvious. An application for a continuance may be made for want of the testimony of a witness who is standing in .court, or who is known to be dead, or the like. The" district judge should have an opportunity to state in a bill of exceptions any fact of this kind, which furnishes the reason of his refusal to grant the continuance. The judgment of the court below is affirmed, with damages for the delay. Judgment affirmed with damages.