Hogan v. Burleson , 25 Tex. 35 ( 1860 )

Bell, J.

—The only question presented by the record is, whether or not the district court erred in overruling the motion of the defendants to continue the cause.

The petition was filed in the court below on the 5th of March, A. D. 1856. On the 17th day of the same month, the defendants filed interrogatories addressed to James A.' Poage, alleged to be a resident of Freestone county." On the 8th day of October, A. D. 1857, the defendants moved for a continuance of the cause, for want of the testimony of the said James A. Poage, alleged in the application to be a citizen of Limestone county. The record discloses that interrogatories addressed to James A. Poage were a second time filed by the defendants, on the 22d day of September, A. D. 1857, about sixteen days before the motion to continue the cause was made. The application for the continuance' showed no diligence on the part of the defendants to procure the testimony of the witness Poage, and the motion to continue was, therefore, properly overruled by the court.

The affidavit which accompanied the motion for a new trial furnished no ground upon which the court could properly have sustained that motion. If the defendants had in fact used reasonable efforts to procure the testimony of Poage, and had been unsuccessful, because the witness had changed his place of residence, or for any other cause, the facts should have been stated in the application.

The judgment of the court below is affirmed, with damages for the delay.

Judgment aeeirmed.