66 Tex. 380 | Tex. | 1886
The affidavit for continuance did not show sufficient diligence on the part of the appellant to procure the testimony of the witness Jackson. What he proposed to prove by Jackson was the execution of a deed by himself, which deed Avas in the line of the appellant’s title to the land in controversy. Without this deed in evidence his adversary necessarily succeeded in the suit. This suit Avas commenced on January 9, 1884; and yet the appellant, Avit-h full knowledge then that he must have proof of the execution of Jackson’s deed, took no steps to procure this testimony until August 25 thereafter. His excuse for the delay was his failure to employ an attorney to defend his suit until within a few days of the time when the interrogatories were propounded to the witness. But the record shows, and the district judge certifies, that, for at least five months previous to the time when the interrogatories were propounded, the appellant was represented by the very attorneys who filed the interrogatories and defended the suit upon its final trial. These facts show great negligence in attempting to procure the evidence, and fully justify the ruling of the court below refusing the continuance. It is, therefore, unnecessary for us to consider whether the mere filing of cross-interrogatories to a Avitness after the opposite party has taken out and forwarded a commission to take his answers upon direct interrogatories, is the use of proper diligence to procure testimony upon which the case of the party filing the cross-interrogatories in a great measure depends. McFaddin v. Preston, 54 Tex., 406.
We think the copy of O. P. Jackson’s will was properly admitted in evidence. Our Bevised Statutes provide that when an original will is probated, the will, together with the application for the probate thereof and all the testimony in the case, shall be recorded in the minutes of the court wherein the will is probated. They further provide that a certified copy of such record of testimony may be read in evidence
The deed from jSÍ. A. Jackson to J. D. Ingle was properly ruled out. The proof upon which it was recorded was not in compliance with our statutes. It does not show that the witness either saw the grantor sign the deed, or heard him acknowledge its execution. After this deed was ruled out, the deed from Ingle to Poole became of no use to appellant as a link in the chain of his title. Its rejection did him no injury, and the deed would not have been, if admitted, pertinent to the issue between the parties.
There is no error in the judgment, and it is affirmed.
Affirmed.
[Opinion delivered June 11, 1886.]