Hipp v. Bissell

• Decision Date: 31 December 1848
• Citation: 3 Tex. 18
• Parties: LOUIS HIPP v. THEODORE BISSELL
• Court: Texas Supreme Court

3 Tex. 18

LOUIS HIPP

v.THEODORE BISSELL

Supreme Court of Texas.

December Term, 1848.

Appeal from Guadaloupe County.

The discretion to be exercised by a court, upon an application for a continuance, is a legal and not an arbitrary one, and is subject to revision.[[[[[4 Tex. 20;5 Tex. 497;10 Tex. 283;29 Tex. 191.]

There may be cases to which no known rules, or fixed principles, can be applied; and in such cases, the discretion exercised cannot be the subject of revision.But when there are known rules of action prescribed, no exercise of discretion can dispense with them.

No suggestion of errors in a record can be received, against the statement of the clerk, as sent up in the transcript, except upon a suggestion of diminution, and an application for a certiorari to send up a more perfect transcript.

This was a suit brought by the appellant to foreclose a mortgage, given by the appellee, to secure the payment of three hundred dollars.

At the spring term, 1847, the defendant pleaded the payment, at different times, of several sums, particularly describing them by their amounts and dates.One of the items specified was a hundred dollars, alleged to have been paid by order of the plaintiff to his brother, Frederick Bissell; and the order, in the form of a letter, addressed by the plaintiff to the defendant, is appended to the bill of particulars annexed to the amended answer filed at that term.Upon the back of this letter there is a receipt for $100, signed “““Frederick Bissell.”

At the fall term, 1847, being the term at which the cause was finally disposed of, the defendant made an application for a continuance, founded on an affidavit, in which he states “that he cannot go safely to trial for the want of testimony material to his cause, and that he has used due diligence to procure the same; that he has had subpœnas issued for A. C. Hide, a citizen of Calhoun county, and Frederick Bissell, of Victoria county; that he expects to prove by them that he has at different times paid to plaintiff, and his legally authorized agents, an amount over and above the amount claimed by plaintiff;” that he does not know the cause of the absence of the witnesses; that the testimony sought cannot be procured from any other source; and that a continuance is not asked for delay, but that justice may be done.

The court refused the application for a continuance; and there was a trial, and a verdict, and judgment thereon for the plaintiff.

From a bill of exceptions in the record, it appears that, at the trial, the defendant, after having given in evidence the letter of the plaintiff appended to the answer, by which he is requested to pay the amount due the plaintiff to his brother, F. Bissell, and having proved that it was in the hand-writing of the plaintiff, proposed to give in evidence the receipt upon the back of it; but the court refused to permit it to be read in evidence without proof of the signature of Frederick Bissell.These are all the material facts, except those which will be found stated in the supplemental opinions of the court.

There was a motion for a new trial, assigning, among other causes, the refusal of the court to grant the continuance asked.The motion was overruled, and the defendant appealed.

HANCOCK and VAN DERLIP for appellant.

NEILL for appellee.

Mr. Justice WHEELERdelivered the opinion of the court.

There appear to have been other points made in the district court, but the only ground relied on in argument for a reversal of the judgment, and the only question which is deemed to require particular notice, is as to the propriety of the ruling of the court in refusing a continuance.

It does not appear, and it is difficult to conceive, upon what ground a continuance was refused.It was a first application, and went even beyond what has ever been required by any statute, upon the first application for a continuance.It embraces, indeed, a literal compliance with the requirements prescribed on a second application.[Acts of 1848, p. 110.]It does seem, therefore, that a continuance ought to have been granted.And in this conclusion we are confirmed, when it is seen that in the progress of the trial the testimony of Frederick Bissell, one of the witnesses, on account of whose absence the continuance had been moved, was most material and essential to prove his signature to the receipt for one hundred dollars.

That the evidence then was material, and that the defendant was denied the benefit of it, and apparently without any fault of his, is undeniable.In view of these facts, we cannot resist the conclusion that injustice may have resulted to the defendant in the trial.They at least afford, in the language of Blackstone (3 Com. 392), “strong probable grounds to suppose that the merits have not been fairly and fully examined, and that the decision is not agreeable to the justice and truth of the case.”

It seems clear that the party was entitled to a continuance, and the only question, we think, which can arise is, whether this court will revise the decision of the district court refusing it.Upon this question there is a diversity of decisions and practice in different courts.By some it is held that applications for continuances are addressed to the discretion of the court, and that that discretion is not the proper subject of revision.[1 How.(Miss.)100;2 Ala. 320.]But by others it is held otherwise, and that where it appears that a party was ruled to trial when he was entitled to a continuance, the judgment obtained against him will be reversed in an appellate court.[4 H. & M. 157; n. 3 Blackf. 304;3 Miss. 28;2 Virg. Cas. 6.]

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