Payne v. Cox

• Decision Date: 01 January 1855
• Citation: Payne v. Cox, 13 Tex. 480 (Tex. 1855)
• Parties: JOHN H. PAYNE v. THOMAS COX.
• Court: Texas Supreme Court

13 Tex. 480

JOHN H. PAYNE

v.THOMAS COX.

Supreme Court of Texas.

1855.

Appeal from Goliad. In the court below the defendant, who is appellant in this court at the term to which the citation was returned, asked for a continuance on the following affidavit: “That he could not go safely to trial this term for want of testimony material to the case; that the witnesses for the defendant were not residents of said county; that one of the said witnesses lives in Brownsville, Cameron county, and that the other witness lives on the Guadalupe, in DeWitt county; that the testimony of both said witnesses is material to the defendant in the said case and it was impossible for the defendant to obtain the testimony of said witnesses at this term of the court.” The citation was returned “served with a copy of writ and petition, May 2d, 1854.” The term of court commenced May 20th, and the case was called for trial on the 25th. The continuance was refused, and there was a verdict and judgment for the plaintiff. Defendant moved for a new trial, on the ground of surprise by being forced into a trial, and fortified his motion by an affidavit that he was not aware of the pendency of the suit until ten days before the commencement of the term, being absent from home, and copies of citation and petition were left at his residence. This motion was refused and defendant appealed.

F. Faunt Le Roy, for appellant. It is often the pfactice of attorneys to have subpœnas issued immediately before the application for a continuance, that the fact may be stated in the affidavit; but this is a mere sham, and it is time the courts were putting an end to such practice. It is believed that the meaning of the statute is this: that when the party applying for a continuance has had time to procure his testimony by the exercise...