139 S.W.2d 636 | Tex. App. | 1940
This suit, an-action in trespass to- try title on certain land in Jefferson County,, was filed by appellants against appellee, Oakwood Realty Company," and certain other defendants, on the 5'th day of January, 1938. Without being served with citation, on the 13th day of January, 1939, appellee filed its answer, and by cross-action prayed for judgment against appellants for title to its interest in the land in controversy. In May, 1939, on agreement with appellants’ attorneys, who filed the suit and who at that time represented them,the case was set for trial on the '25th of May, 1939. More than two months before the date thus agreed upon for the trial, these attorneys withdrew from the case, and appellants employed new. counsel— the record does not show the date of their employment. The case was called for trial on the day set, and áfter their motion for continuance was overruled, appellants took a non-suit, and as between them and ap-pellee, the case preceded to trial on appel-lee’s cross-action, and judgment was rendered in its favor for the title to the land put in issue by the cross-action. From the judgment appellants have duly prosecuted their appeal to this court. The only point presented by the appeal is the assignment of error against the judgment of the lower court overruling the motion for continuance.
The motion for continuance was predicated on the ground that appellants’ new counsel had not had time after their employment to prepare the case for trial. As. stated above, the motion did not give the date that these attorneys were employed; the record shows that appellants had been
Motions for continuance as a general proposition, and the case at bar falls within this rule, are addressed to the sound discretion of the trial court, and the exercise of such discretion will not be revised, unless, on an affirmative showing, it has been abused. Hutson v. Cade, Tex.Civ.App., 217 S.W. 438. It is also the law that on appeal, the presumption must be indulged when not rebutted by the facts in the record, that the motion for continuance was properly overruled. Commercial Standard Ins. Co. v. McKnight Chevrolet Co., Tex.Civ.App., 43 S.W.2d 636. On the undisputed facts in this case, appellants exercised no diligence whatever to prepare their case for trial, but, on the contrary, were guilty of .inexcusable negligence. The motion for continuance was properly overruled.
Certain of the defendants in the lower court filed no cross-action, and appellants’ assignment in no way challenges the judgment in so far as these parties are concerned.
It follows that the judgment of the lower court should be in all things affirmed and it is accordingly so ordered.
Affirmed.