Baker v. Kellogg

16 Tex. 117

• Court: Texas Supreme Court
• Decided: July 1, 1856
• Status: Published

Opinion

Wheeler, 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 complaining ought to show, by Ms bill of exceptions, that he had been diligent in taking out subpoenas, as every presumption is with the judgment.

Judgment affirmed.