Goodson v. Johnson , 35 Tex. 622 ( 1872 )

Ogden, J.

It has been repeatedly decided by this court that if an affidavit on the first and second application for a continuance complies with the requirements of the statute, it relieves the court of all discretion in the matter, and the continuance applied for will be granted as a matter of right.

We think the affidavit filed in this cause a sufficient compliance with the statute to entitle the parties to a continuance. The defense set up to the note sued on is a failure of consideration; that the note was never delivered to the payee thereof by and with the knowledge and consent, of the makers; but that he obtained possession of the note by the means of false and fraudulent representations; and that he transferred the same to the plaintiff without consideration and long after its maturity. If these allegations are true, then the payee had no right to the possession of the note, and could confer none to his assignee after its maturity. The diligence set out in the affidavit appears to have been sufficient, and we think the court erred in refusing the continuance.

The court also erred on the trial of this cause in sustaining the objection to the testimony of S. Gr. Tumlinson in regard to the declarations and admissions of Wiley Tumlinson, the payee of the note, after the same had become due and before the transfer to the plaintiff; since every defense which might have been pleaded and proven against the payee, in possession of the note, might also have been pleaded and proven against the endorsee who received the same after maturity.

It is true the endorsement to plaintiff is dated a day or two before the note became due; but it is alleged by the defendants, and we think pretty clearly proven, that the endorsement could not have been until about two years after the maturity of the note. If that be true, then the plaintiff must have known that fact, and certainly the courts will not permit him to claim and receive the benefits of his own fraudulent acts, or of any fraud to which he was a party.

We also think the court erred in excluding the evidence of the declarations of E. J. W. Tumlinson, deceased, in explanation of the capacity in which he held the note. It appears that the note had been placed in his hands, by the makers and payee, for safe keeping, and to await the happening of a certain event, and the note was in his possession at the time of his death. We think there can be no question that either party interested in, the note could prove by third persons his declarations in relation to the manner how he became possessed of the note, and for what he was holding it.

For the errors here indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.