Lewis v. Williams

• Decision Date: 01 January 1855
• Citation: Lewis v. Williams, 15 Tex. 47 (Tex. 1855)
• Parties: IRA R. LEWIS v. ROBERT H. WILLIAMS.
• Court: Texas Supreme Court

15 Tex. 47

IRA R. LEWIS

v.ROBERT H. WILLIAMS.

Supreme Court of Texas.

1855.

An affidavit, on a first application for a continuance, which states that the defendant did not know of the materiality and residence of the witness until the commencement of the court, and that with all due diligence he could not have procured the testimony of the witness, stating the residence of the witness in a distant county, is not in conformity to the statute.

Where an application for a continuance is not in conformity to the statute, it ought very clearly to appear that the continuance was improperly refused to warrant this court in reversing the judgment on that ground.

In accounting for the absence of the use of the ordinary means of obtaining testimony, in an affidavit for a continuance, where the ignorance of any circumstance is stated as a ground therefor, it should appear that such ignorance was not owing to the want of proper diligence; and the time for preparation is to be computed, not to the first day of the term merely, but to the day when the case is called for trial.

Appeal from Travis. Suit by appellee against appellant on a promissory note. Answer filed. Motion for a continuance, first term, overruled. Judgment for plaintiff. The showing for a continuance was as follows:

The defendant in open court makes oath that he cannot go safely to trial at this term for want of the testimony of Sarah Jones, a resident citizen of Matagorda county, in this state; that he did not know of the materiality and residence of said witness until the commencement of this court, and with all due diligence he could not procure the testimony of said witness. He therefore prays that this cause be continued until the next term of this court; that this continuance is not sought for delay, but that justice may be done.

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                ¦Sworn, etc., May 5, 1855.¦I. R. LEWIS.¦
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The attorney for defendant, on the 23d of May, 1855, when the case was called, made affidavit that defendant was, several days since, unexpectedly called from home, on business, to Matagorda; that in consequence of the absence of defendant, he is unable to procure the exhibit which defendant refers to in his amended answer; that defendant informed affiant that he had a good and valid defense to the suit; that said note was given in consideration of a tract of land, pretended to be conveyed by plaintiff to defendant, and that the title to said land had failed; and that he verily believes, on the return of said defendant, he will be able to produce the exhibit referred to in defendant's amended answer.

The suit had been commenced on the 10th of April, 1855, and the answer filed on the 4th of May, 1855, apparently without citation. The defendant resided in Travis.

J. C. Megginson, for appellant, cited Hipp v. Bissell, 3 Tex. 18;Hensley v. Lytle, 5 Id. 497.

Costa & Allan, for appellee, cited Hunter v. Waite, 11 Tex. 85;Hensley v. Lytle, 5 Id. 497;Lewin v. Houston, 8 Id. 95.

WHEELER, J.

The application for a continuance does not...