Chilson v. Reeves

• Decision Date: 31 January 1867
• Citation: 29 Tex. 275
• Parties: STEPHEN CHILSON ET UX. v. TOLBERT REEVES.
• Court: Texas Supreme Court

29 Tex. 275

STEPHEN CHILSON ET UX.

v.TOLBERT REEVES.

Supreme Court of Texas.

January, 1867.

When the requirements of the statute for a continuance appear in the affidavit, for the first and second application, it is not within the discretion of the court to refuse; the continuance will be granted, as a matter of course. Pas. Dig. art. 1509, note 595; 3 Tex. 18;10 Tex. 283;ante, 191.

But when the affidavit does not follow the statute (as when it does not show diligence, but alleges an excuse for not using it, or when a party is surprised by the non-attendance of a witness who has been present), then the application is addressed to the sound discretion of the court, to be granted or not, according to the intrinsic merit of the application.

Where the application rests upon an equitable ground, the affidavit should make a full statement of the facts. 25 Tex. 95.

Where a continuance has been properly overruled, yet if, upon the trial and by subsequent affidavits, it be made to appear to the court that the party had a meritorious defense, and had suffered injustice, a new trial ought to be granted. Pas. Dig. art. 1470, note 566; 2 Tex. 418;10 Tex. 525.

Where a party sued to foreclose a mortgage founded on a vendor's lien, and recovered judgment and purchased the property at sheriff's sale, and then sued in ejectment to recover possession, it was too late for the defendant to plead that the property was his homestead at the time the judgment of foreclosure was rendered. Pas. Dig. note 198, pp. 65, 66; 13 Tex. 68;20 Tex. 792.

But if the plaintiff purchased the equity of redemption, under an agreement that the defendant should have the property by paying the amount of the bid, this is a trust which may exist in parol. Pas. Dig. art. 3875 (4), note 904.

APPEAL from Burleson. The case was tried before Hon. ROBERT E. B. BAYLOR, one of the district judges.

Reeves sued Chilson and wife to recover three lots, which had been sold to them under a decree of foreclosure of a mortgage on these same lots, in the town of Caldwell.

The defendants plead the general issue, and also that there had been an agreement, that the plaintiff (who was also plaintiff in the foreclosure suit) should bid off the property for the defendants at sheriff's sale, and that the defendants should not be required to pay the purchase money until it suited their convenience, or, in other words, that they should have their own time to pay, and that at the sale, he made public his trust, and thereby prevented others from bidding; that he permitted them to remain in possession, and to make valuable improvements, and that the property at the time of the sale was the homestead of the defendants, and not subject to forced sale.

The first point considered by the court was the overruling the defendant's application for a continuance, and “forcing them into trial.” The point was saved by bill of exceptions, as required by the regular practice of the court. Pas. Dig. art. 1509, note 595.

The affidavits for continuance and the facts in regard to it appear in the statement of facts. The first application stated no diligence, but excused it, by stating that he had only discovered the residence of the witness since the commencement of the term of the court. It did not state what the party expected to prove by the witness; it did not state the residence of the witness. This application being overruled, the defendant filed a second affidavit, in which he swore to diligence to procure the evidence of another witness; that the witness had been subpœnaed, and was in attendance up to the hour when the case was called, and that the applicant was surprised by his absence. The affidavit did not state that the witness was absent without the consent or procurement of the applicant. He did state, however, that the application was not for delay, but that justice might be done, and that this was his first application for continuance. This motion was overruled; the plaintiff proved his title, and the value of the rent. The defendant proved that the plaintiff had said that he bid the property in for the benefit of the defendants, and did not mean to dispossess them; also, that the property was the homestead of the defendants at the time of the sale, and before the rendition of the judgment on the mortgage. There was judgment for the plaintiff for the recovery of the property and rents. The defendants moved for a new trial. They filed the affidavit of the witness, Benson, for whose absence they had moved to continue, who swore that he and another had intended to bid for the property as high as $1,000 or $1,100, but were persuaded not to bid by the plaintiff, who assured them that he should buy it for the defendant, and not dispossess him. Another witness swore, that he heard the plaintiff say that he bought the property for Chilson, and that Chilson was to have it for the amount of the bid, $801.

The defendant swore that a part of this evidence was newly discovered. The defendant appealed, and assigned for error, the overruling of the motion for continuance, the charge of the court, and the overruling of the motion for a new trial. The charge of the court went further for the defendant than the evidence seemed to warrant.

C. C. McGinnis, for appellant. It was error to overrule the application for a continuance. Mr. McGinnis cited the facts in the record, and some facts and reasons given by the court below which are not there. He relied upon the following cases: Prewitt v. Everett, 10 Tex. 283;Hipp v. Bissell, 3 Tex. 18;Hipp v. Huchett, 4 Tex. 20.

He insisted that the court erred in refusing the defendant a new trial. Hagerty's Executors v. Scott and Wife, 10 Tex. 525.

Sayles & Bassetts, for appellees. It may be urged, that there was no answer under which any evidence for the defendant was admissible. Titus v. Crittenden, 8 Tex. 139;Claiborne v. Yoeman, 15 Tex. 44; Trammel v. Pilgrim, 20 Tex. 15. They had plead specially, thereby waiving the plea of not guilty (Rivers v. Foot, 11 Tex. 662;Ruiz v. Chambers, 15 Tex. 586), that there was an agreement between the plaintiff and defendants prior to the sale, by which Reeves was to bid in the property for their benefit, giving them a reasonable time within which to pay his judgment. But they did not put themselves in a condition to avail themselves of this agreement, by bringing into court and tendering the amount due. Hatch v. Garza, 7 Tex. 60;Howard v. North, 5 Tex. 291;Turner v. Smith, 11 Tex. 620. The charge of the court was altogether too favorable for the defendants, and they have no reason to complain. The third charge asked by the defendants, “that a homestead was not subject to forced sale,” was correctly refused, as the liability of this particular property was res adjudicata.Lee v. Kingsbury, 13 Tex. 68, where the very question is decided. The defendants should have set up the homestead exemption in the previous suit to foreclose. Weathered v. Mays, 4 Tex. 387;Tadlock v. Eccles, 20 Tex. 782.

COKE, J.

The first and second assignments of error will be considered together. These allege error in the ruling of the court refusing a continuance of the case, first, on the original motion, and afterwards on the amended or additional motion for continuance.

We are of opinion that neither of these assignments is well taken. The first affidavit is manifestly insufficient under the statute prescribing the requisites for the first application, as it fails to show any diligence whatever, or any effort by the appellant to ascertain the residence of the witness, Luby.

The second affidavit, filed after the first had been...