Osborne v. Scott , 13 Tex. 59 ( 1854 )

Wheeler, J.

The only matter presented by the record which requires notice is the refusal of the Court to grant a continuance, and to reinstate the case after it was dismissed.

The affidavit for a continuance neither averred the use of diligence, nor any sufficient excuse for the want of it. That the plaintiff did not know what the answer would be, or whether the defendant would file an answer, was no excuse for not summoning her witnesses. A plaintiff must use reasonable diligence to obtain the testimony necessary to establish his case, irrespective of what may be the defendant’s answer. He cannot safely wait for the coming in of the answer before subpoenaing his witnesses; and if he do so, it will be at his peril. The continuance was rightly refused. (Hart. Dig. Art. 815.)

The dismissal of the case was of the plaintiff’s election. It was entirely voluntary; and was not occasioned by any erroneous ruling of the Court adversely to the plaintiff. The motion to reinstate the case, therefore, was addressed to the discretion of the Court; and its refusal is not error. (Esterling v. Blythe, 7 Tex. R. 210.) The judgment is affirmed.

Judgment affirmed,