Parker v. McKelvain

17 Tex. 157 | Tex. | 1856

Lipscomb, J.

This suit was brought by the .appellee in this

Court against the appellant,'on a guarantee that one Wood should pay to the plaintiff below the sum of four hundred dollars, with interest thereon, out of two notes sold by the appellant to the appellee. There was a waiver of a trial by jury and the cause submitted to the Judge, who gave judgment for the four hundred dollars, and decreed the enforcement of a lien upon two slaves for the satisfaction of the judgment. The defendant appealed to this Court.

The first error, assigned, is the overruling the appellant’s motion for a continuance of the cause. There is no bill of exceptions to the ruling of the Court, overruling the motion for a continuance, nor is the subpoena, said to have been issued for witnesses, made a part of the record, by which the diligence of the applicant, in his endeavor to have his witnesses present, would appear ; and as the Statute requires that the diligence should be shown, the decision of the Court below cannot be revised. If the subpoena should happen to have been issued a very short time before the case stood for trial, as was the case in Ellis v. L. M. Wiley and others, decided a few days ago, it surely would be insufficient, unless the subpoena had been served. In this case, we do not know when it was issued, or whether served or not. The Clerk of the Court does not deserve censure for not sending the transcript of the subpoena up as a part of the record. It would have been improper to have encumbered the record with it, unless it had beenbnade a part of the record by bill of exceptions, or motion to have it made a part thereof. The affidavit is, however, so defecth e, that without reference to the subpoena, it was right to refuse a continuance. It does not disclose the names of the witnesses, nor the place of residence, (see Hunter v. Wait, IT Tex. R. 85,) and it is possible that they were in call of the Court when the suit was called for trial, or may have been far from the reach of process of the Court, without any probability of their being within its- jurisdiction at the next Term of the Court.

It further appears from the record, that the affidavit was filed on the 5th day of March, and the suit was not taken up for trial until the 10th of the month ; and it may have been true, that they were not in attendance when the affidavit was made, but that furnished no grounds for the conclusion that they would not be in attendance when their presence was required at the trial, four days afterwards ; nor does the affidavit disclose the means by which the affiant could know, at the date of his affidavit, that they would not be present at the trial. It is clear, that the affidavit was insufficient, and furnished no grounds for a continuance that ought to 'have received the sanction of the Court below.

The other ground, that the Court ought to have sustained the exception to the petition, is equally unavailable. The original petition was good without amendment, and the amendment neither strengthened nor impaired it. The demurrer could only have been sustained, by assuming the hypothesis, that the guarantee was only a guarantee of the solvency of the maker of the notes, out of the payment of which the appellee was to receive four hundred dollars. That such hypothesis would have been untrue, there cannot be the least doubt.— The guarantee, upon which the suit was brought, is not to the solvency of the maker, but that he shall pay it at maturity; this is the clear import of the language of the instrument; and that it was so understood by the parties, is conclusively manifested by the action of the parties, in this, that .on Wood’s failing to pay at maturity, the appellant took the collection into his own hands, and commenced suit against Wood on the notes. On failure to pay when due, the plaintiff had his right of action.

The other assignments require no notice from the Court, as they clearly present no ground for a reversal of the judgment. It is therefore affirmed.

Judgment affirmed.