Price v. Lauve

Moore, Associate Justice. This case having been submitted for decision on argument and briefs under and in conformity with the recent rules adopted by this court, it is only necessary, for its disposition, to determine the propositions presented by appellants and the counter-propositions of appellee, or such of them as are found essential for the proper determination of the case. And in doing this, we need not look into the transcript, but may take the statements made by the parties as a correct presentation of its contents, re„ lating to or bearing upon the points respectively relied upon by them for the reversal or affirmance of the judgment. 1. Conceding that “ when a suit to which answer has been filed is reached on the call of the docket, it must be tried or disposed of, unless otherwise ordered by the court, with consent of parties ”; and that the forcing of a case to trial out of the order in which it stands upon the docket by the court, — 80 — over the objection of one of the parties, is error for which, of itself, the judgment should be reversed, (which, speaking for myself, I must say I cannot admit,)—this' can only be done where it plainly appears that the case was not in fact tried when reached on the call .of the docket, but at some other time; and that the order of the court by which it was disposed of otherwise than when reached on the call of the docket, was objected to and exception taken at the time; otherwise consent or acquiescence in the action of the court must be presumed. The sounding of appearance cases for the entry of default, where answers are not filed, is not the call of the docket for the trial or disposition of .cases in their order, as directed in the statute to which we are referred by appellants; (Paschal’s Dig., art. 1461; Kirkland v. Sullivan, 43 Tex., 233;) and we cannot say, from the matters stated by appellants, that the case was not in fact tried when regularly reached on the call of the docket. All cases having precedence of it, for aught we can say, may have been disposed of before this case was called for trial; and certainly it does not appear that an exception was taken to the action of the court in setting the case for trial at the time indicated. Kor if it should be conceded that the matters stated in the affidavit "for continuance are admitted by the presiding judge to be correctly stated, by signing the bill of exception, do they tend to show .that appellants excepted to the order of the court setting the case for a subsequent day of the term. 2. What has been said virtually disposes of appellants’ second proposition under the first assignment of error. Wliere exception to a ruling is necessary to authorize a party to assign error upon it, exception must unquestionably be taken, and the point saved, at the time the ruling complained of is made. By consent of the court, the bill of exceptions may of course be drawn" and signed at any time during the term. That appellants may not have consented to the setting of the case, or may have actually objected to and opposed it, is of no moment, unless they manifested their objection by notify — 81 — ing the court that they desired their objection to become a matter of record by bill of exception; and the court could not, if it so intended or desired, give them the benefit of an exception to the ruling at a subsequent stage of the case, or by a bill showing a want of consent to its ruling. If so, the status of the case might be materially changed, and the interest of appellee affected, without his consent, and after it might be too late to relieve himself from the dilemma into which he might have been led by the failure of appellants to except at the proper time. 8. Unquestionably, if an affidavit for a first continuance is in strict conformity with the statute, and shows that due diligence has been used to procure the desired testimony, it is not discretionary .with the court to grant or refuse the application ; and it may be admitted, that where the affidavit shows that the desired testimony could not have been procured by any possible diligence whatever, the application should he regarded as coming just as fully within the statute as if due diligence had been clearly and directly shown. (Payne v. Cox, 13 Tex., 480.) The refusal to grant a continuance when asked for on an affidavit of this character, no one will deny, is error for which the judgment should be reversed, unless it plainly appears that appellants could not possibly have suffered any injury thereby. But was the affidavit in question such as to entitle appellants to a continuance under the statute ? It shows no diligence whatever to procure the desired testimony; but, though not so full and explicit as it should have been, we think it reasonably appears, from it and the facts shown by the record, that the testimony could not probably have been procured by the use of any ordinary or reasonable diligence. The affidavit also states that the testimony of the witness was material to aid the defense pleaded; and had it stopped with this averment, the application should, we think, have been allowed. But the statement in the affidavit, that the testimony of the absent witness is material,"is not absolute and unqualified. It does not stand alone, — 82 — but is qualified by the recital of the facts known to the witness, and which we must infer were desired to be proved by him. If so, an inspection of the petition and answer clearly shows that the testimony was in fact irrelevant to any issue in the case. The application, therefore, in this particular, was not a statu-' tory application for a first continuance, but presented matters for the exercise of the discretion of the court, and in exercise of which the application for continuance was properly overruled. 4. Hor do we think the second ground presented by the affidavit for continuance entitled to a more favorable consideration. If the court either could or should have enforced what is claimed to be the uniformly-observed practice under regulations of the bar, the nature and character of these regtilations were not shown. It may be inferred, but it is not made to appear that the court knew of the resolutions which are said to have been adopted by the bar, or had ever recognized them as of any force and efficacy in any particular case, unless by consent of attorneys in the case, or when presented to it in the form of a written agreement in the case in which they were asked to be enforced; and certainly we cannot tell, from anything stated to -us, whether they were violated by the setting of this case for trial, as was done, or not. As the application in this particular was addressed to the discretion of the court, it was necessary for appellants to have stated sufficient facts to enable the court to see that some injustice would be done them if forced to trial under the circumstances and at the time the case was called. This was not done; and it has not been made apparent to us that appellants were injured or have suffered any injustice by the call and trial of the case. 5. Ho injury was done appellants by the charge of the court complained of. The deed of appellee to -Mrs. Price shows, that, by the terms of the contract, the note sued .on was to be secured by a lien on the property in consideration of which it was given, and also lby a dee.d of trust upon — 83 — “ county land.” To hold, therefore, that appellee, by accepting the deed of trust, waived the lien upon the property in part payment of which the note was given, would be to hold that the mere compliance with the contract defeated and destroyed one of its essential stipulations. To state such a proposition is to answer it. It is not alleged that any other deed of trust upon “ county land ” had been executed to secure the note, as stipulated and shown by the recitals of the deed from appellee, but the defense insisted upon, is that the trust deed referred to in this suit was executed subsequently to the deed to Mrs. Price; that it should not be regarded as given under and in fulfillment of the terms of the original contract, but as a subsequent and independent security for the note, the acceptance of which by appellee abrogated the preexisting lien on the property in part payment of which the note was given. To support this proposition, we are referred to the familiar rule of equity, that a vendor’s lien will not be implied for the payment of the purchase-money, if other security than the land is stipulated for in the contract. But no authority has been adduced or cited, showing that where the vendor’s lien is implied from the terms of the sale, the subsequent acceptance of another security is a waiver or release of it, which is the proposition insisted on by appellants. It is, however, not necessary in this case for us to decide whether such is its effect or not. The lien upon the property sold by appellee, although so called in the deed and note, is not in fact a vendor’s lien, properly speaking, but an express contract lien, stipulated for and reserved in the deed conveying the land for which the note sued on was given. (White v. Downs, 40 Tex., 231.) And the doctrine of waiver of the vendor’s lien which equity implies in the absence of security for the payment of the purchase-money, is wholly inapplicable. This being the case, appellants’ entire defense falls to the ground; and the charge of the court, if erroneous, is immaterial. But if a new and independent security not stipulated for in the original contract would have — 84 — the effect of a waiver of the so-called vendor’s lien, and we leave out of view the parol testimony which went to the jury, there can, we think, be no reasonable ground of doubt to say that the deed of trust upon which this action was in part brought, though executed subsequent to. the deed, was not given in compliance with the understanding of the parties, that the note sued on should be secured by a trust deed upon “ county land,” as well as by a lien on the lots for which it was given. If so, there can be no question that the legal effect of the written evidence in the case authorizes the charge of which appellants complain; for certainly the parol testimony in no way tends to prove that the lien on the property sold appellants, stipulated for and expressly retained in the deed to Mrs. Price, had been released, or that there is anything in it tending to rebut the presumption to be drawn from the written evidence in the case, that appellee was entitled to the so-called vendor’s lien, as well as that given by the trust deed. This being the fact, there was no material error in the charge. (Lea v. Hernandez, 10 Tex., 137; Parker v. Leman, 10 Tex., 117; Hollingsworth v. Holshousen, 17 Tex., 47.) 6. Appellants not having asked for the sale of the property in the' deed of’trust before a sale of that conveyed by the deed of"appellee to Mrs. Price, they cannot now object to the decree on this account.' Appellants should, we' think, if no good reason was shown to the contrary, have been allowed, if they had asked to do so, to indicate the order in which the property should be sold; but as they failed to do this, there was no error in the court doing it by its decree. There is no error shown in the judgment, and it is therefore affirmed. Affirmed.