64 Tex. 261 | Tex. | 1885
The affidavit for continuance did not state that the testimony expected from the witness Kendrick could not be obtained from any other source. Hence it did not come up to the requirements of the statute in cases of affidavits for a second or any subsequent continuance. R. S., art. 1278.
As it could not be sustained under the statute, and was an application for a third continuance, it should have shown very strong equitable grounds for its allowance. This the application failed to do. The showing as to diligence was insufficient. When the attachment was ordered returnable instanter it was the duty of the defendant to see that it was issued immediately and placed in the hands of the sheriff for service. Instead of doing so, he trusted to the clerk to have it issued in due time, and he should bear the consequences of the clerk’s neglect in failing to issue the process. The subsequent facts showed clearly that if the attachment had issued on the evening the order was made, the witness could have been had in time for the trial. He had previously disobeyed a subpoena, and hence the greater necessity for the attachment and of diligence in seeing it issued and executed. The court granted ample time to have the witness at the trial, and as he was not there through failure of the defendant to take proper advantage of the process granted by the court, he and not the plaintiff should suffer the consequences.
The court did not err in refusing the continuance, and the judgment is affirmed.
Affirmed.
[Opinion delivered May 19, 1885.]