Payne v. Cox
Texas Supreme Court
Appeal from Goliad. In the Court below, the defendant, who is appellant in this Court, at the Term to which the citation was returned, asked for a continuance, on the following affidavit: “ That he could not go safely to trial this Term, for “ want of testimony material to the case ; that the witnesses “ for the defendant were not residents of said county; that “one of the said witnesses lives in Brownsville, Cameron “ county, and that the other witness lives on the…
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Appeal from Goliad. In the Court below, the defendant, who is appellant in this Court, at the Term to which the citation was returned, asked for a continuance, on the following affidavit: “ That he could not go safely to trial this Term, for “ want of testimony material to the case ; that the witnesses “ for the defendant were not residents of said county; that “one of the said witnesses lives in Brownsville, Cameron “ county, and that the other witness lives on the Guadalupe, “ in DeWifct county; that the testimony of both said winesses “ is material to the defendant in the said case, and it…
1Opinion of the CourtLipscomb, J.
It will be seen by reference to the statute, that on application for a first continuance, the party applying for the same, shall make affidavit, “ that he has used due diligence to procure said testimony, stating such diligence.” (Hart. Dig. Art. 815.) The affidavit is not in the precise terms of the statute, because the affiant does not swear that he has used due diligence, nor what that diligence was; but it would seem that the spirit of the statute had been complied with, where the affidavit is to facts that would show that any efforts to obtain the testimony, would be vain and useless. If *482…
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