Lewis v. Williams

15 Tex. 47 | Tex. | 1855

Wheeler, J.

The application for a continuance does not comply with the requirements of the Statute, and was, therefore, addressed to the sound discretion of the Court. In such a case it ought very clearly to appear that the continuance was improperly refused to warrant this Court in reversing the judgment on that ground. It does not so appear to us in the present case. The affidavit of the defendant for a continuance appears to have been made eighteen days in advance of the calling of the cause for trial. It attempts to excuse the want of diligence to procure the attendance or testimony of the witness ; averring that the affiant “ did not know of the materiality and residence of the witness until the commencement of this Count(which was several days before the making of the affidavit) and that “ with all diligence he could not procure the testimony.” We think the Court might well regard the affidavit as not accounting satisfactorly for the entire absence of diligence, on the part of the defendant, to procure the attendance or testimony of the witness. It might have been thought not wholly improbable, that, if active measures had been employed, even at the commencement of the term, (when the fact of the materiality and residence of the witness came to the knowledge of the defendant,) the testimony of the witness might have been obtained before the calling of the cause for trial. And in the absence of any explanatory statement, the Court, moreover, may not’ have been satisfied that it was not for the want of due and proper diligence, that the defendant was not earlier informed of the materiality and residence of the witness. It is quite evident, that, if the defendant was really entitled to a continuance, it might have been made more satisfactorily to appear. The case presented by the affidavit is not a stronger one for a continuance, than others which have been held by this Court insufficient. (Hunter v. Waite, 11 Tex. R. 85 ; Hensley v. Lytle, 5 Id. 497 ; Williams v. Edwards, supra.) The affidavit of the attorney does not strengthen the appellant’s case. It shows that, relying on Ms affidavit for a continuance, made so long in advance, he had left the Court without taking any steps to prepare for the trial. The defendant does not appear to have used the diligence which the law requires, nor to have so satisfactorily accounted for the want of it, as to warrant this Court in holding that the District Court improperly and erroneously refused a continuance. The judgment is, therefore, affirmed. °

Judgment affirmed."