Payne v. Cox

| Tex. | Jul 1, 1855

Lipscomb, J.

It will be seen by reference to the statute, that on application for a first continuance, the party applying for the same, shall make affidavit, “ that he has used due diligence to procure said testimony, stating such diligence.” (Hart. Dig. Art. 815.) The affidavit is not in the precise terms of the statute, because the affiant does not swear that he has used due diligence, nor what that diligence was; but it would seem that the spirit of the statute had been complied with, where the affidavit is to facts that would show that any efforts to obtain the testimony, would be vain and useless. If the affiiant had caused subpoenas to have been issued, it would have been held sufficient diligence, under the strictest construction of the statute; yet, how vain and useless and entirely hopeless of success, would it have been in this case, to have issued subpoenas. We believe the facts sworn to, show that no diligence would have been successful, and the object of the statute being to prevent frivolous grounds of continuance, to the delay of trial, that its object is sufficiently secured by the affidavit as made, and that the cause ought to have been continued.

Reversed and remanded.