Stinnett v. Wm. M. Rice & Co. , 36 Tex. 106 ( 1872 )

Ogden, J.

The court did not err in overruling the motion for a continuance in this cause. This application was made on the 17th day of August, 1871, and states the fact, that on the 4th day of February previous, a commission was forwarded by mail to Marion county, to take the deposition of Chester Dewey. Over six months having elapsed since the mailing of the commission, and no other diligence having been shown to procure the testimony, we think it was for the court in its discretion to determine the question of diligence ; and as the court has decided that showing insufficient, we are not inclined to disturb that judgment. This affidavit was made by the attorney, and he states that no other witness known to affiant could prove the fact stated. We think the affidavit should also negative the fact that there might be witnesses known to the party for whose benefit the application was made, who could prove the same facts. When such an application is made by an attorney, the affidavit should show why the same was not made by the party himself, and it should show also affirmatively, that the party is not attempting to evade the requirements of law, by procuring others to swear to a state of facts that he could not.

From all that appears in the affidavit, the defendant, Geo. M. Stinnett, might have known any number of witnesses within easy access of the court, who could have proven all the facts set out in the affidavit, and yet for the purpose of procuring a continuance, he kept out of the way, and let his attorney make the affidavit. We think the court did not err in refusing to grant a continuance upon the affidavit filed, nor was it error to overrule a motion for a new trial for the same reasons.

The judgment is therefore affirmed.

Affirmed.