Hunt v. Makemson

Citations

• 56 Tex. 9
• 1881 Tex. LEXIS 163

Syllabus

<p>1. Continuance — Due diligence.— An application for the continuance of a cause, made on a day of the term for which the cause had been set for trial, after a former application during the term had been refused, can neither be regarded as a first or second application under the statute, but is addressed to the sound discretion of the court outside of fixed rules; and the action of the court below thereon will not be reversed unless there has been a manifest abuse of discretionary power. Due diligence was not shown when no effort was made to procure the testimony of a witness by deposition until during the term, and after the first application for continuance was overruled.</p> <p>2. Trial by jury.— A term of'court began on the 3d day of the month, and the docket was called for default and. to enable parties to demand juries during the call on the 7th. No jury was demanded by counsel in the cause (they being present) for either party when the case was called. After the call was completed and the jury cases were set for a future day, the non-jury causes were called for trial, and plaintiffs counsel applied for a continuance, which being overruled, they demanded a jury. Held, that the application for a jury came too late.1</p> <p>3. It seems that for the purpose of testing the admissibility of evidence, the plaintiffs petition, in so far as it states facts amounting to a cross bill, may be regarded as such cross bill.</p> <p>4. See case as to rights of legal though not beneficial owner of judgment, to notice, when an order of sale issues against his directions and to his prejudice as mortgagee of the land to be sold.</p> <p>5. Rights oh a junior mortgagee.— The holder of a junior lien by recorded mortgage has the right to pay off the prior vendor’s lien; that right is not extinguished by foreclosure under proceedings to which the holder of the junior lien is not a party, and may be shown, under apt averments, in a controversy between the purchaser under the prior lie