Couts v. Neer
| Decision Date | 01 April 1888 |
| Court | Texas Supreme Court |
| Parties | COUTS <I>et al.</I> <I>v.</I> NEER. |
Hood, Lanham & Stephens, for appellants. John T. Harcourt, for appellee.
This action was brought by the appellee to recover damages on account of an injury alleged to have resulted from the falling of a stone wall in course of construction by the appellants, contiguous to the wall of the house in which appellee was doing business. It was claimed on the one side that the wall was defectively constructed, and that this was attributable to the negligence of the appellants, and the cause of the injury; while on the other it was contended that the wall was skillfully and carefully constructed, and was thrown down by an unprecedently severe wind and rain. A second application for a continuance was made by the appellants, which the court announced was not sufficient because sufficient diligence to procure the attendance or testimony of the witnesses was not shown. The court, however, notwithstanding this ruling, announced that a continuance would be granted, but that the costs for the term would be taxed against the appellants. This seems to have been a condition on which the court would grant the continuance, and the appellants declined to accept it on this term, and went to trial, reserving a bill of exceptions. The ruling of the court is now assigned as error.
Under the facts under which the ruling was made, we deem it unnecessary to consider whether the ruling of the court on the question of diligence was correct, or whether the court properly exercised its discretion in ruling that the costs for the term should be taxed against the appellants as a condition on which the continuance would be granted. It was said in Burton v. Power, 4 Tex. 380: "Continuances on such terms as the court may think just to impose are common, and whatever the terms may be, the party on which they are imposed has his election to take the continuance on the terms imposed, or to reject it, and go to trial; and if he does so, and the verdict is against him, and he believes the court erred in ruling him to trial when he had shown a good cause for continuance, he can have the judgment of the court overruling his motion for continuance revised on error or appeal, after moving the court below for a new trial, on the ground of his being ruled to trial against his showing for a continuance." We are of the opinion, however, that a party cannot reject a continuance offered on terms, and take the chances of a verdict in his favor, and then ask a revision of the ruling of the court on the merits of his motion, if the judgment be against him; but, if it be in his favor, on final hearing had after a continuance granted on terms; we see no reason, if the question be properly saved, why this court on the question of costs should not revise the ruling imposing costs as a condition on which a continuance was granted.
Four persons who were drawn as jurors stated, on examination as to their qualifications, that they had heard much about the case, and had formed an opinion as to the plaintiff's right to recover which it would require evidence to remove; that they stated that they thought they could...
To continue reading
Request your trial
-
Jones v. State
...Civil Practice in District and County Courts § 11.11 (1983 rev.). The rule was established more than a century ago. See Couts v. Neer, 70 Tex. 468, 9 S.W. 40 (1888). For at least sixty-five years, this Court employed an essentially similar doctrine when it confronted a claim that a State's ......
-
Hyundai Motor Co. v. Vasquez
...34. Compton, 364 S.W.2d at 182 (citing Houston & T.C. Ry. Co. v. Terrell, 69 Tex. 650, 7 S.W. 670, 672 (1888) and Couts v. Neer, 70 Tex. 468, 9 S.W. 40, 41 (1888)). 35. TEX. GOV'T CODE § 36. Cortez, 159 S.W.3d 87, 94 (Tex.2005). 37. Id.; see also Nancy S. Marder, Beyond Gender: Peremptory C......
-
Southwestern Telegraph & Telephone Co. v. Abeles
...There was evidence that the stroke of lightning was of an extraordinary character. Appellant's fourth instruction should have been given. 9 S.W. 40. 4. court should have given appellant's fifth instruction, in effect that, even though appellant was negligent, yet if the current of electrici......
-
Kansas City Life Ins. Co. v. Elmore
...determine whether the cause is sufficient, and such are the cases cited by appellee. McIntosh v. Railway Co., 192 S. W. 285; Couts v. Neer, 70 Tex. 468, 9 S. W. 40. But it seems to us, when the statute says a certain cause shall disqualify a juror, if the cause is found to exist, that shoul......