Baker v. Kellogg
Texas Supreme Court
Appeal from Galveston. Tried before the Hon. Nelson H. Hunger. Suit on a promissory note. Answer, of failure of consideration. The application for a continuance was made at the first Term after service. There was a bill of exceptions to the ruling on the application for a continuance, but it contained nothing respecting the same, except the affidavit, ruling and note of exception. The affidavit will be found in the second paragraph of the synopsis.
1Opinion of the CourtWheeler, J.
The affidavit for a continuance states no-other diligence than simply the issuing of a subpoena. The witnesses residing in another county, their depositions might have been taken. “ Due diligence ” is required: and that, of course, implies that the party has used the means which the law provides. The issuance of a subpoena, merely, was not sufficient, when the witnesses resided in a different county.— Besides, it does not appear that the subpoena was issued in time, even if that were sufficient. Since, under the rnle of the Court, subpoenas are not copied into the record, the party…
2Cited by2 opinions
- Williams v. TalbotTexas Supreme Court · 1863
- Jackson v. StateCourt of Appeals of Texas · 1878