Leija v. Concha, 2547.

• Decision Date: 28 May 1931
• Docket Number: No. 2547.,2547.
• Citation: 39 S.W.2d 948
• Parties: LEIJA et al. v. CONCHA.
• Court: Texas Court of Appeals

39 S.W.2d 948

LEIJA et al. v. CONCHA.

No. 2547.

Court of Civil Appeals of Texas. El Paso.

May 28, 1931.

Appeal from District Court, El Paso County; Ballard Coldwell, Judge.

Application by Ramon Concha for probate of last will of Jesus E. Concha, contested by Raul Leija and others. From a judgment admitting the will to probate, contestants appeal.

Reversed and remanded.

Harrison, Scott & Rasberry, of El Paso, for appellants.

Roy D. Jackson, of El Paso, for appellee.

PELPHREY, C. J.

The statement of the nature and result of the suit appearing in the brief of appellants being agreed to by appellee will be adopted by us:

"Appellee, Ramon Concha, a nephew of the deceased, filed in regular form an application to probate the Last Will and Testament of Jesus E. Concha. Appellants, Raul Leija, Luis Leija, Moise Leija and Eva Leija, grandchildren of the deceased, the two last named being minors, who acted by and through their next friend, filed a contest of the application. On hearing in the County Court the will was admitted to probate. Contestants duly perfected an appeal to the District Court of El Paso County, Sixty-fifth Judicial District, filed amended pleadings, and demanded a jury.

"The grounds of the contest were that the will was a forgery and by alternative pleas that the deceased lacked testamentary capacity at the time of the execution of the will; that the execution was procured by undue influence and further that fraud, by making various untrue representations, was practiced upon the testatrix. Upon the verdict of the jury to special issues, the court rendered a judgment admitting the will to probate. Contestants' Motion for a new trial was overruled and they have perfected the appeal by filing the proper cost bond."

Opinion.

The points upon which the appeal is predicated are: (1) That the trial court abused his discretion in overruling appellants' motion for a continuance; (2) that the requested instruction on the issue of undue influence should have been given; (3) that the instruction in connection with issue No. 1 was upon the weight of the evidence and improper; (4) that certain remarks made by counsel for appellee were improper and prejudicial; (5) that certain remarks made by the court to one of the appellants were prejudicial; (6) that the court erred in excluding certain letters and declarations; (7) that evidence that appellee had received certain letters from testatrix should have been excluded; and (8) that a document in which the husband of testatrix had named appellee as alternate beneficiary was improperly admitted.

Article 2167, Revised Statutes, provides: "No application for a continuance shall be heard before the defendant files his defense, nor shall any continuance be granted except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law."

Rule 49 for the government of trials in the district court provides: "Absence of counsel will be of no good cause for continuance or postponement of the cause when called for trial, except to be allowed in the discretion of the court, upon cause shown or upon matters within the knowledge or information of the judge, to be stated on the record."

Omitting the formal parts, the application filed by appellants, as shown by their bill of exceptions, reads:

"Raul Leija, Luis Leija, Moise Leija and Eva Leija, contestors in the above entitled cause made this their First Application for a continuance and say that they cannot safely go to trial because on October 22, 1930, W. W. Bridgers, who was the attorney employed by them and who represented them in the contest and Probate of the Will in the County Court of El Paso County, Texas, notified them that he had withdrawn from the case and on the morning of October 23, 1930, the date this cause had been regularly set for trial, they employed the firm of Harrison, Scott & Rasberry, who represent them, and within thirty minutes after said attorneys agreed to accept employment it was necessary for them to be in court and select the jury, and as the court knows the contest and Probate of the Will is based, among other things, on the allegation that the testatrix was not of sound and disposing mind and memory and the execution of said will was procured by undue influence and at the time of employment said attorneys knew nothing of said case and have not had an opportunity to...