Birdwell v. Cox
| Decision Date | 01 January 1857 |
| Citation | 18 Tex. 535 |
| Court | Texas Supreme Court |
| Parties | W. & J. W. BIRDWELL v. J. R. COX. |
The alleged agreement (of counsel, to continue the cause) not being in writing, and the counsel differing as to the existence of such agreement, the court very properly refused to grant a new trial on that ground.
But if the agreement in this case were admitted, no sufficient excuse was shown for not having made it the ground of an application for a continuance.
Error from Walker. Tried below before the Hon. Peter W. Gray.
Suit by defendant in error against plaintiffs in error on a promissory note. Plea of failure of consideration. There was an affidavit by defendants, for a continuance on the ground that a commission to take the depositions of certain witnesses in Tennessee, had not been returned. But it did not appear that any order was made on it, or that it was called to the attention of the court. Verdict and judgment for plaintiff. Motion for new trial, in support of which the following affidavits were filed:
That defendants were forced into trial when they had a sufficient ground for continuance but were not aware of it nor did not learn it until after the verdict was rendered; in support of this these defendants make the following statement, to wit: These defendants employed W. D. Schoolfield, an attorney of this court, to defend said suit; he entered upon the duties of said contract, and was instructed by these defendants as to the importance of having the deposition of the witnesses cross-interrogated by them and referred to in motion for continuance at this court; that said Schoolfield made an agreement with A. M. Branch, one of the attorneys of plaintiff, that said suit should not be tried until said depositions were returned. In the meantime a difficulty sprung up between said Schoolfield and one of these defendants, which prevented any intercourse between them, which was the cause of these defendants not knowing the agreement and arrangement existing. These defendants have no hesitation in saying that they believe said attorney was prevented from taking the deposition of witnesses referred to in motion for continuance, by said agreement. These defendants believe that the depositions referred to in said motion are material to the accomplishment of justice in said suit. Wherefore these defendants say they have been forced into trial contrary to an existing agreement between counsel, which prevented the then counsel of these defendants from taking such steps as would have insured the having said deposition here at this term and before the trial, and they therefore ask that the verdict be set aside and a new trial be granted to them. The affidavit of W. D. Schoolfield is...
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St. Louis, Iron Mountain & Southern Railway Co. v. Webster
...38 P. 59; Ransom v. Peters, 2 Ala. 647; Kent v. Green, 43 Neb. 673, 62 N.W. 71; Bradford v. Downs, 25 A.D. 581, 49 N.Y.S. 521; Birdwell v. Cox, 18 Tex. 535; Palatka & I. R. Rd. Co. v. State, 11 St. Rep. 395; Gulf, C. & S. F. Ry. Co. v. King, 80 Tex. 681, 16 S.W. 641. The above cases, cited ......
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In re Comstock
...to writing, the agreements therefore "speak for themselves." Fortis Benefits v. Cantu , 234 S.W.3d 642, 651 (Tex. 2007) ; Birdwell v. Cox , 18 Tex. 535, 537 (1857). The trial court has a ministerial duty to enforce a valid pretrial Rule 11 agreement. Fortis Benefits , 234 S.W.3d at 651. We ......
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Kennedy v. Hyde
...25 of the Texas Constitution. See 47 Tex. 597, 625 (1877). 1 The original rationale for the rule was stated cogently in Birdwell v. Cox, 18 Tex. 535, 537 (1857). "Agreements of counsel, respecting the disposition of causes, which are merely verbal, are very liable to be misconstrued or forg......
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St. Louis, I. M. & S. Ry. Co. v. Webster
...Ransom v. Peters, 2 Ala. 647; Kent v. Green, 43 Neb. 673, 62 N. W. 71; Bradford v. Downs, 25 App. Div. 581, 49 N. Y. Supp. 521; Birdwell v. Cox, 18 Tex. 535; Palatka, etc., R. R. Co. v. State, 23 Fla. 546, 3 South. 158, 11 Am. St. Rep. 395; Railway Co. v. King, 80 Tex. 681, 16 S. W. The abo......