Byne v. Jackson

25 Tex. 95 | Tex. | 1860

Bell, J.

We are of opinion that the court below did not err in overruling the motion to continue the cause. The facts stated in the affidavit filed in support of the motion to continue, did not entitle the party to a continuance as matter of strict right under the statute. The statute, in speaking of a first application for a continuanco, contemplates a case in which diligence has actually been used. It is true, that where no possible diligence could have accomplished the object of procuring the testimony for want of which the continuance is sought, then the continuance will not he refused because the party applying for it has not used any diligence ; but every application for a continuance, which does not come within the strict letter of the statute, is addressed to the sound discretion of the court, and, as in the present case, where the party who .asks for a continuance has not used any diligence, but seeks to present to the court facts which excuse him for not using diligence, or, in other words, which excuse him for not having procured the testimony, he should make oath to the merits of his case, and should show to the court that there is a reasonable probability that the testimony can be procured within a reasonable time, which would ordinarily be by the next term of the court.

In this case, the party applying for the continuance does not swear that he has a just defence to the action; nor does he state any facts from which the court could conclude that there was a reasonable probability of procuring the testimony within any reasonable time.

The judgment of the court below is affirmed.

Judgment affirmed.