| Tex. | Jan 15, 1867
The first and second assignments of error will be considered together. These allege error in the ruling
We are of opinion that neither of these assignments is well taken. The first affidavit is manifestly insufficient under the statute prescribing the requisites for the first application, as it fails to show any diligence whatever, or any effort by the appellant to ascertain the residence of the witness, Luby..
The second affidavit, filed after the first had been overruled, is also insufficient. When the requirements of the statute are met by the terms of the affidavit, for the first and second application for continuance, it is not within the discretion of the court to refuse them. They will be granted as a matter of course. (Hipp v. Bissell, 3 Tex., 10" court="Tex." date_filed="1848-12-15" href="https://app.midpage.ai/document/love-v-mcintyre-4887052?utm_source=webapp" opinion_id="4887052">3 Tex., 10; Prewitt v. Everett, 10 Tex., 283" court="Tex." date_filed="1853-07-01" href="https://app.midpage.ai/document/prewitt-v-everett-4887808?utm_source=webapp" opinion_id="4887808">10 Tex., 283; Paschal’s Dig., Art. 1509.) But when the affidavit does not follow the statute, as when it does not show diligence, but alleges an excuse for not using it, or when some other equitable consideration not embraced in the terms of the statute is relied on, or when, as in this case, after a motion for continuance has been overruled, a party is surprised by the unauthorized withdrawal of his witness, who had been up to that time present in obedience to subpoena, then the application is addressed to the sound discretion of the court, to be granted or not, according to the intrinsic merit of the application. In order that this discretion may be properly exercised, the special matter relied on should be especially averred in the affidavit, and if the absence of a witness is the ground relied on, the affidavit should state the facts which it is expected he will prove, and, in addition, should allege that the cause of action or ground of defense relied on in the pleadings is just and meritorious. Anything less than this does not sufficiently inform the court of the merits of the application, to enable it to exercise its discretion intelligently and justly, and is therefore insufficient.
The fifth assignment alleges error in the refusal of the court to grant a new trial. We are of opinion that this assignment is well taken.
While the motion for continuance was clearly insufficient, and, therefore, properly overruled, it 'appears very fully from the motion for new trial, and the accompanying affidavits, as well as the testimony on the trial, that the appellants did, in fact, have good grounds for the continuance of the case, if they had been properly presented to the court, and that by reason of having been forced to trial, unprepared, they have suffered injustice. Under such circumstances, it is believed that the former rulings of this court, in similar cases, will at least sanction, if they do not require, the granting of a new trial, for the purpose of attaining the justice of the case. (Young v. Gibson, 2 Tex., 418; Hagerty v. Scott, 10 Tex., 525" court="Tex." date_filed="1853-07-01" href="https://app.midpage.ai/document/hagertys-exors-v-scott-4887856?utm_source=webapp" opinion_id="4887856">10 Tex., 525; Sayles’ Prac., § 598.)
It is insisted, by the appellee’s counsel, that the answer of the appellants .presents no defense, and that, therefore, they have not been injured by being forced into a trial unprepared.
It is true that the answer is unskillfully and inartifieially drawn, and would have been bad on special exception; nevertheless, we are of opinion that, if true, (and it must be taken as true in considering its sufficiency,) it does show, though imperfectly, an equity in the appellants, requiring the consideration and protection of the court. The agreement, by the .appellee, to bid off the property for the appellants, and the low price at which he obtained it, in consequence of the agreement, places him in the position of a trustee, holding the legal title for the use and benefit of the appellants, subject to be divested by the
If the appellee, in his petition, had represented the case in the light in which it must be viewed, taking the answer to be true, he certainly would not have been entitled to a recovery of the property, but only to have it sold for the payment of his debt. When the same facts sufficiently appear in the answer admitted (in considering its sufficiency) to be true, we do not perceive that they have less force, or that different legal consequences ensue. The other ground of defense set up in the answer, that the property in controversy was the homestead of the appellants, when the original judgment of foreclosure was rendered, and when the property was sold at sheriff’s sale, when the appellee became the purchaser, cannot avail the appellants now. If, as is alleged in the petition in that suit, the vendor’s lien existed on the property for the money sued for, the fact that it was the homestead of the appellants would not have exempted it from liability, if the defense had been properly made in that ease. Whether such lien did 'or did not exist, or whether it was the homestead of appellants, as alleged, it is too late now to inquire. The defense, if true in fact, should have been made in the original suit. The judgment in that case concludes that and all other questions that might properly have been litigated in the case. This is well settled on general principles and by repeated adjudications of this court. (Tadlock v. Eccles, 20 Tex., 792; Lee v. Kingsbury, 18 Tex., 68" court="Tex." date_filed="1856-07-01" href="https://app.midpage.ai/document/claiborne-v-tanner-4888720?utm_source=webapp" opinion_id="4888720">18 Tex., 68.)
We are of opinion that, under the circumstances of this case, a new trial should have been granted, and that its refusal was error. It is unnecessary to the disposal of the case to consider the other assignments of error. The judgment is reversed, and cause remanded for further proceedings. ■ Reversed and remanded.