McMahan v. Busby

Smith, J. This suit was instituted April 9, 1860, and process was served on the appellant the same day; and it was called for trial on the 8th day of March following, when the defendant made an affidavit for a continuance for want of the testimony of the witness, M. Slater, a resident citizen of Liberty county; that he had used due diligence to procure the said testimony, by propounding interrogatories to him, on the 20th April, 1860; that he had been served with citation but a few days before, and it was then too late to procure the answers of the witness. The court refused to grant the continuance, verdict and judgment were rendered against him, and he has brought the cause here by appeal, and this ruling of the court constitutes the main error assigned. To entitle a party to a continuance on the first application, he must make it appear by affidavit that he has used due diligence to procure the testimony, and set forth the diligence used; which diligence is defined to be the use of the means given by law to procure the same, and this is done by the issuance and service of subpoena, or the filing of interrogatories, succeeded by notice of them to the adverse party, and issuance of commission, and procuring the answers of the witness without delay. In this case nothing appears to have been done to procure the evidence but.filing the interrogatories some eleven days after service of citation, and eighteen days [195] before the cause was called for trial; that the party has not made use of the means given by law cannot well be doubted; but an excuse is offered for the want of the proper diligence, that there was not sufficient time to take the deposition. When the application for a continuance, on the first or second application, complies with the statute, it is error to refuse it, (3 Tex., 18; 10 Tex., 283;) but when it does not, and an excuse is given for the omission, then the application is addressed to the discretion of the court, and its action will not in general be revised by this court. (20 Tex., 158.) There was no bill of exceptions reserved to the action of the court refusing the continuance. This should have been done, and then all the facts and circumstances upon which this discretionary power of the court below was exercised would have been presented here, and in case of a gross error would have been corrected. This should be done, as the better practice, in all cases. (16 Tex., 93; 20 Tex., 536; 16 Tex., 21; Harrison v. Cotton, Galveston T., 1860,) [25 Tex., 53.] When the affidavit does not show legal diligence, but an excuse for not using it, then it is addressed to the discretionary powers of the court, and it should show that he has merits in his case, and that the evidence can be procured within a reasonable time. (Hardison v. Hooker, Galveston T., 1860;) [25 Tex., 91.] In the affidavit made in this cause there is no showing or pretense of a defense of any character, nor of what he will be able to prove by the witness. The presumption will be indulged in favor of the correctness of the action of the court below (23 Tex., 86) until the contrary be shown by bill of exceptions. (16 Tex., 118; Harrison v. Holton, Galveston T., 1860;) [Harrison v. Cotton, 25 Tex., 53?] The plaintiff below admitted that the absent witness, Slater, if present, would testify to the facts as proposed by the defendant. Whether this would be a sufficient answer [196] to the motion, for the cohtinuance appears not to be well settled. In South Carolina it is held to be sufficient. (Harp., 83.) But to the contrary in New York, (7 Cow., 369,) and Kentucky, (3 Mars., 467,) and in Tennessee, (1 Meigs, 195; 16 Tex., 457.) These are criminal cases, in which the defendant has the right to be confronted with the witnesses; and'the rule may well be held different in civil cases. (Fisher v. Miller, 13 Tex., 227.) It is not necessary to decide this point in this cause. There being no error apparent, the judgment is Affirmed.