Tex. & Pac. R'y Co. v. Hardin

Citations

• 62 Tex. 367
• 1884 Tex. LEXIS 250

Syllabus

<p>1. Continuance —Diligence.— A statement that a party has made an effort to get the depositions of certain witnesses, by making out interrogatories, having them crossed by opposing counsel, who have agreed to waive commissions and consented that the depositions might be taken before any officer legally qualified, is not stating that due diligence contemplated by the law. R. S., art. 2219 et seq.; citing McMahan v. Busby, 29 Tex., 194.</p> <p>2. Same.— An application for continuance, showing that the means given by law to procure testimony has not been used, is addressed to the discretion of the trial judge, and, in the absence of some abuse of that discretion, this court will not reverse a judgment because of a failure of the lower court to grant a continuance.</p> <p>3. Same — Requisites.— Such application should clearly and fully sot out the grounds for a continuance, as to whom the interrogatories were sent, the substance of the material testimony not obtainable then, the efforts to ascertain the whereabouts of witnesses, that their evidence will be at hand at the next term of the court, and other like facts explaining fully the various things done constituting diligence.</p> <p>4 Same —Cases cited and approved.—Trammell v. Pilgrim, 20 Tex., 160; McMahan v. Busby, 29 Tex., 195; Baldessore v. Stephanes, 27 Tex., 455; Byne v. Jackson, 25 Tex., 96; Townsend v. State, 41 Tex., 135; Chilson v. Reeves, 29 Tex,, 279, sited and approved.</p> <p>5. Same —Practice in supreme court—Bill of exceptions.—A bill of exceptions to the action of the court below in overruling a motion for continuance should fully state the grounds upon which its action was based.</p> <p>6. Charge of the court.— Where the court charged the jury as to whether an injury resulted from defective cross-ties or rails, and also explained what character of defects would impose liability on the company, an instruction to the effect that, if the jury should find that such defects did in fact exist, which we