Watson v. Blymer Manuf'G Co.

• Decision Date: 26 October 1886
• Citation: 2 S.W. 353
• Court: Texas Supreme Court
• Parties: WATSON <I>v.</I> BLYMER MANUF'G CO.

Page 353

2 S.W. 353

WATSON

v. BLYMER MANUF'G CO.

Supreme Court of Texas.

October 26, 1886.

Appeal from district court, Bowie county.

Suit against F. M. Watson and J. W. Berry and Charles Wilkerson to recover the amount due upon three notes, for $300 each, made by Watson and Berry, and indorsed by Wilkerson, and to foreclose the lien of a chattel mortgage upon certain property belonging to Watson and Berry. The defendants Watson and Berry answered by general denial, and pleaded that the consideration for which the notes were given had failed in part; that they were given for certain goods bought by defendants from the plaintiffs through their agent, the defendant Wilkerson, which the defendants were induced to buy through the false and fraudulent representations of Wilkerson. Pending the suit, F. M. Watson died, and the appellant, Mrs. G. A. Watson, was appointed administratrix of his estate, and made a party defendant to the suit. Judgment for plaintiffs against the defendants J. W. Berry, and Mrs. G. A. Watson, as administratrix, for the sum of $900 principal, and $315 interest, and decree given foreclosing the mortgage lien, and for costs, as well as judgment against the defendant Wilkerson.

The defendant Mrs. G. A. Watson, as administratrix, appeals, and assigns the following errors: (1) The court erred in overruling the defendants' application for a continuance to enable them to avail themselves of the testimony of R. H. Towns, a witness material to the defense; (2) the court erred in overruling the defendants' objections to the introduction of the copy of the mortgage sued on; (3) the court erred in overruling the defendants' motion for a new trial; (4) the court erred in admitting in evidence, over the objections of the defendants, the copy of the mortgage sued on, without an allegation setting up the loss of the original; (5) the court erred in ordering a sale of the property, instead of ordering the judgment to be certified to the court below to be paid in due course of administration.

F. M. Henry, for appellant. Todd & Hudgins, for appellees.

GAINES, J.

This suit was instituted by appellees in February, 1884, against F. M. Watson, appellant's intestate, and one J. W. Berry, and one Charles Wilkerson. The defendants filed their answer on the twenty-ninth day of the same month. The cause was continued at each successive term of the court, until the February term, 1886, whether by consent, or because it was not reached upon the docket, does not appear from the record. In the mean time F. M. Watson died, and G. A. Watson, appellant, was appointed administratrix of his estate, and made a party to the suit. At the last-named term the cause was tried, and appellees recovered judgment for their debt, and enforcing their lien. Defendants in the court below moved for a new trial, which motion was overruled, and then gave notice of appeal.

The first error assigned is the overruling the motion of appellant for a continuance. This was sought, as is shown by the bill of exceptions taken to the action of the court, on account of the absence of a witness stated in the application to be a telegraph operator and transient man, then located at Troupe, Texas. The application further stated that the witness left this county shortly after the suit was brought, and that defendants had made most diligent application to procure his testimony, "by writing to various places, and making constant inquiries to find out his whereabouts," but that they failed to do this until during the present term of this court. The materiality of the witness' testimony is stated, and the testimony set out, and other grounds for the motion given, which were not required, this appearing to be a first application. We do not think the proper diligence was shown. The materiality of witness' testimony was known when the original answer was...