Collins v. Davis , 1922 Tex. App. LEXIS 644 ( 1922 )

HODGES, J.

Davis, the appellee, sued and recovered a judgment for $365 against the appellant Charles H. Collins and his wife. The suit was based upon a promissory note executed by Collins and his wife some time during the year 1916. The defense was that the execution of the note was procured by duress, consisting of threats of a criminal prosecution made by Davis and his attorney against Collins. After the judgment was rendered Davis, through his attornieys, remitted that portion of the judgment against Mrs. Collins, and.Collins alone has appealed.

The assignments of error, based upon the refusal of the court to grant a further continuance of the case, are without merit. The motion for a continuance was not statutory in form, and the court did not abuse his discretion, under the circumstances, in refusing to further delay the case for the purpose of enabling Collins to secure the desired testimony.

Upon conflicting evidence the court concluded, as a matter of law,, that the execution of the note was not procured by the threats alleged by Collins; but found as a fact that the note was based upon the consideration of a pre-existing indebtedness due Davis from Collins. The judgment will therefore be affirmed.

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