Ward v. Cobbs

• Decision Date: 01 January 1855
• Citation: 14 Tex. 303
• Parties: BENJAMIN WARD v. WILLIAM H. COBBS.
• Court: Texas Supreme Court

14 Tex. 303

BENJAMIN WARD

v.WILLIAM H. COBBS.

Supreme Court of Texas.

1855.

Confinement by sickness so that a party is unable to attend the trial of his cause is not sufficient ground for a new trial; it merely excuses the failure of the party to move for a continuance or new trial in proper time.

Where a new trial is moved on the ground of the absence of witnesses, the names of the witnesses must be stated, and their affidavits must be produced showing the facts to which they can testify, or good cause must be shown why such affidavits are not produced.

Error from Harrison.

J. M. Morphis, for plaintiff in error.

LIPSCOMB, J.

This suit was brought on a note given by Ward to one Mann. It is not negotiable on its face, and it expresses the consideration for which it was given. It was assigned by Mann to the defendant in error, Cobbs. The maker and assignor were both sued. The maker pleaded a failure of consideration and in reconvention. There was a demurrer to the answer, which was properly overruled, as there can be no question that the answer set up a good and valid defense against the payment of the note, and facts also sufficient to sustain the plea of reconvention against Mann, if supported by evidence. It appears that none of the matters pleaded were given in evidence on the trial, and there was a judgment against the maker of the note and its assignor for its amount and interest. A motion for a new trial was made, supported by the affidavit of Ward, which was overruled.

The ground relied on to reverse the judgment is error in the court below in overruling the motion for a new trial. The affidavit shows that the appellant was confined to his bed by sickness and unable to be at court; that his witnesses had been duly subpœnaed, by whom affiant believes that he could have proved the matters set forth in his answer; that he is informed that his witness did not attend.

We have been referred by the appellant's counsel to the case of Spencer v. Kinnard (12 Tex. R., 180) as conclusive in his favor. We will point out what we regard as materially different in that case and the one before us. In that case, like this, the defendant was confined to a bed of sickness when the judgment was rendered against him; his witnesses, by whom he believed he could have supported his defense, did not attend; and, like this case, the defendant was not able, in consequence of his sickness and absence, to ask a continuance of the case; but in that case,...