Campion v. Angier
| Decision Date | 01 January 1856 |
| Citation | 16 Tex. 93 |
| Parties | R. CAMPION AND ANOTHER v. SAMUEL T. ANGIER. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
The affidavit, on a second application for a continuance on the ground of the absence of a material witness, must state that there are not other witnesses in attendance by whom the defendant can prove the same facts, or, in the words of the statute, “that the testimony cannot be obtained from any other source.”
The correct practice doubtless is, in no case to revise the judgment of the court refusing a continuance, unless the party asking a reversal on that ground has reserved the point by a bill of exceptions. [20 Tex. 536;25 Tex. 53;29 Tex. 191.]
Error from Brazoria. The case had been continued at a previous term on the application of the same defendant. The other facts are sufficiently apparent from the opinion.
P. MacGreal, for plaintiffs in error.
J. H. Bell, for defendant in error.
The affidavit for a continuance was insufficient, in that it did not state that there were other witnesses in attendance by whom the defendant could prove the same facts, or, in the words of the statute, “that the testimony cannot be obtained from any other source.” (Hart. Dig. art. 815.) And the event showed that the defendant had witnesses in attendance who were sufficiently cognizant of all the material parts of his case.
The correct practice doubtless is, in no case to revise the judgment of the court refusing a continuance, unless the party seeking a reversal on that ground has reserved the point by a bill of exceptions. It not unfrequently happens that we would be at a loss to discover upon what ground a continuance has been refused, were it not for reasons contained in the bill of exceptions. When called upon to sign a bill of exceptions, the court may state very satisfactory reasons, apparent to the court there, which would not otherwise be made to appear to this court; as, that the evidence sought was, in fact, within the reach of the party (Hall v. York, supra), or there was evidence before the court that the affidavit was not in fact true. The judgment is affirmed.
Judgment affirmed.
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...refusing or granting a motion to postpone or to continue, a proper bill of exceptions must be taken to the action of the court. Campion v. Angier, 16 Tex. 93; Harrison v. Cotton, 25 Tex. 54; McMahan v. Busby, 29 Tex. 195; Railway Co. v. Hardin, 62 Tex. 367; Philipowski v. Spencer, 63 Tex. 6......
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