108 S.W. 971 | Tex. App. | 1908
This is a suit on a note for $4,202.31, of date September 21, 1894, and due in September, 1895, instituted by appellee against appellant. The suit was filed on November 21, 1904, and to relieve himself of the bar of the statute of limitations of four years, it was alleged that prior to September, 1899, and before the note was so barred, appellant had absented himself from the State of Texas and had remained without its limits until November 21, 1904, when he was temporarily in Bexar County, where citation was served on him. Appellant pleaded payment and denied that he had been absent from Texas, as alleged in the petition, and pleaded limitation of four years. The cause was tried by the court and judgment rendered for appellee.
The first assignment of error complains of the overruling of a motion for a continuance. In the qualification of the bill of exceptions, taken by appellant to the action of the court in overruling the motion, the court stated that this cause was regularly called at the April term, 1907, for trial, and a continuance was granted on account of the absence of appellant, and attorneys for appellee at that time announced to the attorneys for appellant that a trial would be urged at the next term of the court. The case was set for trial on the first Monday in June and attorneys for appellee several times notified appellant's attorneys, ten days before the case was called, of its setting. That seven or eight days before the first Monday in June, appellant passed through San Antonio and, although he was notified of the setting of the case, he refused to remain over for the trial and went on to Mexico. That when the cause was regularly reached and called for trial during the first week in June, a continuance was sought, not on account of the absence of appellant, but *584 on the ground of the illness of Mrs. Imogen Hambleton, a female witness for appellant, whose deposition had not been taken, although it was stated in open court by counsel for appellee that he had frequently tried to get appellant's counsel to take her deposition, offering to waive time and notice and to go with appellant's attorneys and a notary to the house of the witness and take her deposition. The court overruled the motion for a continuance but granted a postponement until June 24, 1907, with full notice to appellant's attorneys that the case would then be tried. The cause was regularly reached for trial on June 25, 1907, and a continuance was again sought on account of the absence of Mrs. Hambleton, who had since June 6 gone temporarily to Harris County, and also because one of the attorneys did not feel well enough to try the case. He was asked if he would be able to try on Friday, but would not say. Appellee's attorneys insisted on a trial and the court ordered the case to trial and the attorney, who was not well, went out and sent in his partner, who conducted the case for appellant. No jury fee was paid by appellant, and a jury being waived by appellee, the cause was submitted to the court. As stated by the court in his qualification of the bill of exceptions, the application for a continuance was the third one made, and the cause had been on the docket for over two years.
No effort was shown to have been made to take the deposition of Mrs. Hambleton, although appellant had sought to continue for her in the early part of June, three weeks before the cause was tried. Absence of a female witness is no cause for continuance when no diligence has been used to procure her evidence by deposition. Mrs. Hambleton could not be compelled to attend in person as a witness, and having her summoned as a witness did not constitute diligence. Southern Cotton P. Mfg. Co. v. Bradley,
Appellant has reference in his brief to the second and third assignments of error, but as they are not copied into the brief they will not be considered.
The evidence sustained a finding upon the part of the court that appellant left the State before the note was barred by limitation, and was living a part of the time in Monterey, Mexico, and in Maryland and Washington, D.C. Appellee swore that appellant left Texas before September, 1899, and was from that time on not a resident of the State, that was sufficient to stay the running of the statute of limitation. Rev. Stats., art. 3367. The burden did not rest upon the appellee to show the precise periods of time during which appellant visited Texas, but all that was required was to establish *585
facts from which the jury might reasonably conclude that appellant had not been in Texas four years in the aggregate, from the time the note became due until the suit was instituted. Fisher v. Phelps,
The court did not err in finding that the note had not been paid, and the contention that the judgment is without evidence to sustain it, can not be maintained.
We have considered all the assignments of error copied into the brief and conclude that no error has been shown, and the judgment is, therefore, affirmed.
Affirmed. *586