Watson v. Blymer Manufacturing Co.

Citations

• 66 Tex. 558
• 2 S.W. 353
• 1886 Tex. LEXIS 566

Syllabus

<p>1. Continuance—Diligence—A case having been upon the docket for so long as two years, a party, in his first application for continuance, is held to the most rigid requirements of the statutes. See the opinion for an insufficient showing as to diligence.</p> <p>2. Secondary evidence—Affidavit—Testimony of party—Statutes construed— The statute permitting a party to a suit to make affidavit of the loss of a written instrument., was intended to furnish a means for introducing secondary evidence. In cases where parties to the suit are competent witnesses, the necessity for an affidavit of loss is removed; its object can be attained by parol testimony.</p> <p>3. Evidence—Written instruments—A written instrument not declared upon as the foundation of the action or defense, which is sought to be introduced as evidence, must be filed with the papers of the case three days before the trial. This requirement is complied with if the instrument in question was made an exhibit to the original petition.</p> <p>4. Practice—Evidence—Objections to the introduction of evidence not made when the evidence was offered, will not be considered on appeal.</p> <p>5. Partnership—Mortgage—Judgment—Probate—In giving judgment against two mortgagors, the estate of one of whom was then in probate, all property named in the mortgage was ordered to be sold. Held, Unless it appeared that the mortgage was a partnership transaction and covered partnership property, only the interest of the mortgagor living should have been ordered sold, and the judgment should have been certified to the county court for observance.</p>