Mossler Acceptance Co. v. Burwell , 1945 Tex. App. LEXIS 816 ( 1945 )

MONTEITH, Chief Justice. ,

This action was brought by appellees, Vida Lee Rodgers Burwell and her husband, for the recovery of statutory penalties for usurious interest alleged to have been paid by Mrs. Burwell in connection with the purchase of an automobile from appellant through one Doc French. Appellees alleged that at the time of the purchase of said automobile, Mrs. Burwell was asked to sign certain papers on the representations by the said Doc French and his assistants, who were not known to Mrs. Burwell but were known to appellant, for the alleged purpose of obtaining good title to said automobile; that, at the time she was asked to sign said papers, they contained no typewritten matter and no figures of any kind and that she did not appear before any person or persons for the purpose of having her signature witnessed, but that appellant had caused certain blank spaces in said papers, containing figures and names of witnesses whom she had never seen, to be filled in for the sole purpose of establishing a mortgage on said automobile.

Appellant denied that it had charged or collected usurious interest. It specially pled that it had purchased the mortgage and note in question before maturity and without notice of any defects.

In a trial before a jury all issues were answered in favor of appellees, including a finding that appellee had paid $214.48 as usurious interest. Judgment was rendered in favor of appellees and against appellant in the sum of $428.96.

Under its first point appellant contends that the court erred in overruling its application for a continuance, because of the absence from the state of a witness, one Chester Harkins, who was alleged in said application to have been the individual who handled the sale of the automobile with Mrs. Burwell and who actually prepared the papers for her signature. Appellant stated in effect in said application that no other witness was able to testify as to these facts, which were vital to appellant’s defense; that defendant had used due diligence to procure the testimony of said witness, in that said witness had promised to be available on the trial of this suit, but that, without notice to appellant’s attorney, the witness was forced to make a trip out of Harris County and that he was expected to return in about ten days or two weeks; that the testimony which said witness would give if present could not be obtained from any other source; that appellant expected to prove by him that the terms entered into by Mrs. Burwell in the purchase of said automobile were reduced to writing and signed by her in the presence of said witness, and that she authorized said witness to procure the completion of all necessary, instruments affecting the transaction in accordance with the instrument prepared in Mrs. Burwell’s presence by the absent witness. The application, which is not shown to have been controverted, stated that it was a first application for continuance. It was sworn to by H. A. Crawford, who stated on oath that he was attorney for appellant. He sought a continuance to next term of court or a resetting of the cause for a later time at that term of court when said witness would be available.

Rule 252, Texas Rules of Civil Procedure, which has as its source Article 2168, Vernon’s Ann.Civil Statutes, which it repealed, reads: “If the ground of such application be the want of testimony the party applying therefor shall make affidavit that such testimony is material, showing the materiality thereof, and that he has used due diligence to procure such testimony, stating such diligence, and the cause of failure, if known; that such testimony cannot be procured from any other source; and, if it be for the absence of a witness, he shall state the name and residence of the witness, and what he expects to prove by him; and also state that the continuance is not sought for delay only, but that justice may be done; provided that, on a first application for a continuance, it shall not be necessary to show that the absent testimony cannot be procured from any other source.”

This being a first application for a continuance, the questions presented under this point are, whether appellant’s application was in compliance with said Rule 252, whether the testimony sought was material, and whether appellant had used due diligence to procure such testimony.

The application in question was in substantial compliance with said Rule 252. It was properly verified, and was not controverted by appellees, consequently the facts alleged therein must be accepted as true. The absent witness resided in the City of Houston where the case was set for trial. It is alleged that he was an agent of Doc French, who was alleged by plaintiff to have owned the automobile in question. Counsel for appellant states in his application for continuance that said witness had promised to be available on the trial of the suit and that, without notice to appellant, he was forced to make a trip out of Harris County.

Under the pleadings this testimony was material, in that the witness Harkins was the only witness who could testify to the facts in reference to the execution of said papers by Mrs. Burwell and their contents, and as to whether she signed them in the presence of witnesses or whether she had appeared before a notary public. The testimony of the witness Harkins would have been in direct conflict with the testimony of Mrs. Burwell to the effect that she did not sign said papers in the presence of witnesses and that blanks in said papers were not filled out in her presence. There can be no doubt but that the jury was entitled to have the benefit of this testimony and that the failure to procure it was prejudicial to appellant’s cause.

This court has recently held in the case of United Employers Casualty Co. v. McCloud, Tex.Civ.App., 146 S.W.2d 247, under an almost identical state of -facts, that where an absent witness who had been notified of a setting of a case and has promised appellant to attend the trial thereof and to testify therein, were sufficient facts to excuse appellant from' taking the prescribed statutory steps to enforce the attendance of the witness, or from taking his deposition, citing the cases of Hargrave v. Texas & P. Ry. Co., Tex.Com.App., 12 S.W.2d 1009; Haley Fisheries, Inc., v. Payne, Tex.Civ.App., 48 S.W.2d 437.

While it has ordinarily been held by the courts of this state that the granting or refusing of a motion for continuance rests within the sound discretion of the trial court, the exercise of this sound discretion has always been held to be subject to review, particularly when the statute or rule, in this case said Rule 252, with reference to applications for continuance has been, as was done in this case, in every way complied with, in which case there is no presumption that the court did not abuse its discretion. United Employers Casualty Co. v. McCloud, Tex.Civ.App., 146 S.W.2d 247, supra; Gulf, C. & S. F. Ry. Co. v. Brooks, 63 Tex.Civ.App. 231, 132 S.W. 95, writ refused.

Taking into consideration the facts alleged in said application for continuance which were material, we think that appellant was justified in relying on the promise of said witness to be present and was excused thereby from taking the prescribed statutory steps to enforce his attendance.

Under above facts appellees’ motion to strike statement of facts which was taken with the case is overruled.

It follows that the judgment of the trial court must be reversed and the cause remanded for another trial.