Baker v. Johnson , 16 Tex. 133 ( 1856 )

Wheeler, J..

If the original .papers, including the. deposit..... fion of the witness Ewing, had not been lost, it is clear, the defendant would have had no ground for a continuance. For if he had not obtained the desired evidence in answer to Ms cross interrogatories, he would be left without excuse for not having taken out a commission and taken the deposition of the witness. The only diligence he pretends to have used, was that of propounding to the witness cross interrogatories.— But the answers of the witness to the interrogatories were lost, with the other papers in the case ; and their loss is to be ascribed to the party, as they were charged to Ms attorney, and he was unable to produce or account for them. It was, therefore, in effect, an application for a continuance to obtain, or supply the place of evidence, which the party making the application had lost. This the Court might well refuse. The party making the application ought to satisfy the Court, that the necessity for it had not been occasioned by his fault. The application was rightly refused on its own merits ; and it is, therefore, immaterial whether the explanatory affidavit of the plaintiff’s attorney was rightly received or not. It did the defendant no injury ; as without it, he had not shown himself entitled to a continuance. The judgment is affirmed.

Judgment affirmed.