McMahan v. Busby

Citations

• 29 Tex. 191

Syllabus

<p>To entitle a party to a continuance, on the first application, he must make it appear by affidavit that he has used due diligence to procure the testimony, and set forth the diligence used; which diligence is defined to be the use of the means given by law to procure the same. And this is done by the issuance and service of subpoena, or the filing of interrogatories, succeeded by notice of them to the adverse party, and issuance of commission and procuring the answers of the witness without delay. (Paschal Dig., Art. 1509, Note 595.)</p> <p>The filing interrogatories for a witness in an adjoining county, eleven days after service and eighteen days before the trial, without suing out a commission, is not due diligence.</p> <p>When the application for a continuance complies with the statute, it is error to refuse it.</p> <p>But when it does not, the application is addressed to the discretion of the court, and the action thereon will not, in general, be revised.</p> <p>It is the better practice, in all cases, to except to the action of the court overruling a motion for a continuance. But as the affidavit wholly failed to show diligence, the court determined upon its sufficiency without a bill of exceptions.</p> <p>See the pleadings in this case, upon which and the affidavit the judge said; “In the affidavit made in this cause, there is no showing or pretense of a defense of any character, nor of what he will be able to prove by the witness.”</p> <p>Whether to admit the facts which would prove the defense will answer the motion for a continuance in civil cases is unsettled; the court intimated that it would not.</p>