Parker v. Leman

• Decision Date: 01 January 1853
• Citation: 10 Tex. 116
• Parties: PARKER v. LEMAN.
• Court: Texas Supreme Court

10 Tex. 116

PARKER

v.LEMAN.

Supreme Court of Texas.

1853.

Where a party fails to cause a subpœna to issue until three days before the cause is called for trial, he is not entitled to a (second) continuance on the ground of the absence of the witness, howsoever material his testimony may be.

Where there is no evidence to a given point it is not error for the court so to instruct the jury; and where there is no evidence in support of a defense which confesses and attempts to avoid the cause of action, it is not error to instruct the jury that they must find for the plaintiff. (Note 21.)

A verdict for a certain sum, “the amount of the note sued on, with legal interest from the maturity of the note,” is sufficiently certain. (Note 22.)

Objections in confession and avoidance, which were neither taken in the court below nor in the assignment of errors, must be disregarded.

Appeal from Cameron. The affidavit for a new trial stated that Johnson had been subpœnaed, and that he left the county suddenly and unexpectedly, not giving affiant time to take his testimony, but promising affiant to return in time for the trial, &c. A bill of exceptions stated that the motion was overruled “upon the ground that the defendant issued subpœnas for Johnson only three days before the motion.”

The verdict was “for the sum of seven hundred dollars, the amount of the note sued on, with legal interest from the maturity of the note.”

The property for which the note was given was sold by the sheriff under an order directed to him from the probate court, and the note was made payable to the executor; but no objection was made in the court below, nor in the assignment of errors, as to the validity of the sale by the sheriff.

Allen & Hale, for appellant.

R. Garland, for appellee.

LIPSCOMB, J.

The appellant has assigned the following errors:

1st. The court erred in overruling the application for a continuance.

2d. In instructing the jury, absolutely, to find for the plaintiff.

3d. In overruling the motion of the appellant for a new trial.

We will consider these in the order in which they have been presented. The cause had been continued at the previous term of the court, on the affidavit of the defendant, (appellant in this court,) and our statute requires that the motion for a continuance, a second time, must be supported by an affidavit, not only showing what the party expects to prove by the absent witness, but must also show what diligence he has used to procure the evidence. (Hart. Dig., art. 815.) The court below thought the showing not sufficient, because the defendant had not issued a subpœna until three days before the motion was made. The importance of having witnesses subpœnaed a reasonable time before the court meets is manifest. It should be long enough to enable the witness to arrange his affairs, so that he could attend without personal inconvenience, or a loss from being drawn off from his own business; or to take his deposition if he could not attend. The showing of diligence acquires no strength from the suggestion, made in this court, that the witness was an attorney, and that his attendance upon the court might have been reasonably expected. His profession is not made a matter of record in this suit; and we are not authorized judicially to go beyond the record and recognize him as an attorney. Even if the fact had been proven, it would not have justified a relaxation of the diligence required by the law. I say the mere fact of the witness being an attorney would not be sufficient. It should be shown that he was in the habit of attending the court in the prosecution of his profession to create any presumption that he would be in attendance on the court. There are a great many men who have license to practice law who never enter the court-house, unless under subpœna. I have no doubt that in the case in 2 Dall., 183, cited in Hensley v. Lyttle, (5 Tex. R., 500,) it was made further to appear that the attorney was generally in attendance, and practicing his profession in the court, and that it did not rest upon the mere fact of the witness having...