Texas & P. Ry. Co. v. Nelson

• Decision Date: 30 May 1892
• Docket Number: 25.
• Parties: TEXAS & P. RY. CO. v. NELSON.
• Court: U.S. Court of Appeals — Fifth Circuit

50 F. 814

TEXAS & P. RY. CO. v. NELSON.

No. 25.

United States Court of Appeals, Fifth Circuit.

May 30, 1892

W. W Howe, R. S. Lovett, Henry Finch, and George Thompson, for plaintiff in error.

M. L Crawford, for defendant in error.

Before PARDEE, Circuit Judge, and LOCKE and BRUCE, District Judges.

PARDEE Circuit Judge.

The defendant in error, B. F. Nelson, instituted a suit in the district court of Tarrant county, state of Texas, against the Texas & Pacific Railway Company, to recover damages for personal injuries suffered by the said Nelson in being run over by one of the locomotives of the railway company of a railway crossing in the city of Ft. Worth. The railway company appeared in the state court, filed a demurrer and answer to the petition, and thereupon, by a proper petition and bonds, removed the case into the circuit court of the United States for the northern district of Texas. After transcript filed in the circuit court, the railway company filed its first amended original answer, wherein it demurred to the sufficiency of the plaintiff's petition, then excepted to the sufficiency thereof, and for special answer said:

'That if plaintiff received any of the injuries alleged, same were caused and occasioned by reason of his own carelessness and want of care in failing to stop and look and listen for the approaching train; and defendant avers that said plaintiff had full opportunity to see and observe the approach of the moving train, but it says that, by reason of the said negligence and want of care, plaintiff cannot recover.'

This cause came on thereafter for trial before a jury, and resulted in a verdict for the plaintiff and against the defendant railway company in the sum of $4,500. Judgment was entered on the verdict, and a motion for a new trial was overruled, whereupon the railway company brought the case to this court by a writ of error.

The first assignment of error is waived. The second assignment of error is:

'That the court erred in overruling the application of the railway company for the continuance on account of absence of witnesses, W. P. Burts, J. J. Goodfellow, and J. T. Fields, because said application showed full and sufficient grounds for a continuance.'

The bill of exceptions in relation to this matter recites:

'This cause was called for trial on the 20th of January, 1892, whereupon plaintiff announced 'Ready,' and defendant, the Texas & Pacific Railway Company, announced that it was not ready, and moved the court for a continuance until next term. Plaintiff waiving a written motion, but demanding a strict showing for a continuance, defendant, through its attorney, George Thompson, stated that it was not ready for trial, for want of the testimony of W. P. Burts, J. J. Goodfellow, and J. T. Fields; that said witnesses are material, and were absent without the procurement or consent of defendant; that said witnesses resided in Tarrant county, Tex.; that defendant had exercised due diligence to obtain the testimony of said witnesses, in this: that on the 14th day of January, 1892, it caused to be issued out of said court a subpoena for said witnesses, which was duly served upon them, as appeared by said subpoena; that this was the first application of the defendant for a continuance; and that the testimony of said witnesses could be procured by next term of court. Upon fully considering said motion and application, the court determined the same insufficient, and not well taken, in that it did not show that said witnesses had been tendered their witness fees and mileage, the said witnesses by said application being shown to reside beyond the limits of the county in which the court was sitting; and said application was thereupon overruled, and the cause went to trial, to which defendant excepted.'

The continuance of a cause at issue is a matter of discretion, and a refusal thereof is not assignable for error. Woods v. Young, 4 Cranch, 237; Sims v. Hundley, 6 How. 1; Barrow v. Hill, 13 How. 54; Thompson v. Selden, 20 How. 195; McFaul v. Ramsey, 20 How. 523; Cook v. Burley, 11 Wall. 659. It is suggested that since the above decisions were rendered the act of June 1, 1872, (Rev. St. U.S. Sec. 914,) has been passed, conforming the practice and procedure of the circuit courts to that adopted in the courts of record of the state where such circuit court is held; and that, therefore, the decisions referred to can have no application to the question here raised. And it is contended that under the practice in the courts of Texas (Rev. St. Tex. arts. 1276, 1277) the granting or refusal of the first application for a continuance is not a matter of discretion where the applicant for the continuance complies with the terms of said article; citing Cleveland v. Cole, 65 Tex. 404; Chilson v. Reeves, 29 Tex. 279,-- which seem to sustain the contention as to the practice in the courts of Texas. It is, however, to be noticed that the mode of summoning witnesses and taking testimony in the courts of the United States in regulated by statutes of the United States, and therefore the practice in the state courts in relation to such matters does not apply. See sections 876, 877, 914, Rev. St. And the question of diligence in summoning witnesses and procuring testimony should be tested by the laws of the United States rather than by the practice in the state courts. The case of McFaul v. Ramsey, supra, is cited with approval in the case of Kennon v. Gilmer, 131 U.S. 22-24, 9 S.Ct. 696, in which the court says:

'By the statutes of the territory the court may, on good cause shown, change the place of trial, where there is reason to believe that an impartial trial cannot be had therein; and an appeal lies to the supreme court of the territory from an order granting or refusing a new trial, or from an order granting or refusing to grant a change of venue. Code Civil Proc. Mont. 1879, Secs. 62, 408; Act Amend. Feb. 23, 1881, Sec. 7. But the statutes of the territory cannot enlarge the appellate jurisdiction of this court. The granting or denial of a change of venue, like the granting or refusal of a new trial, is a matter within the discretion of the court, not ordinarily reviewable by this court on writ of error. McFaul v. Ramsey, 20 How. 523; Kerr v. Clampitt, 95 U.S. 188; Railway Co. v. Heck, 102 U.S. 120. And the refusal to grant a change of venue on the mere affidavit of the defendants' agent of the state of public opinion in the county clearly involves a matter of fact and discretion, and is not a ruling upon a mere question of law.'

In the case of Cox v. Hart, 12 S.Ct. 962, (decided on the 16th of the current month, and not yet officially reported,) the supreme court again decides generally that the granting or refusing of an application for continuance is not reviewable on error.

In the courts of the United States motions for a new trial are addressed to their discretion, and the decision, whatever it may be, cannot be reviewed on appeal or writ of error. 'This...