Reid v. Clarkson

Court of Appeals of Texas

Reid v. Clarkson

138 S.W. 216, 1911 Tex. App. LEXIS 828

CourtCourt of Appeals of Texas

DecidedMay 24, 1911

StatusPublished

Cited by1 cases

This text of 138 S.W. 216 (Reid v. Clarkson) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Reid v. Clarkson, 138 S.W. 216, 1911 Tex. App. LEXIS 828 (Tex. Ct. App. 1911).

Pincite

Opinion

FLY, J.

This is a suit on a contract for the sale of an automobile, in which appellant agreed to pay and did pay $500 on the car and agreed to pay $500 more, but failed and refused to do so, and appellee sought to recover the additional amount and interest and attorney’s fees. The jury returned a verdict in favor of appellee for $660, and found that a lien existed on the automobile. Judgment was rendered in accord therewith.

[1] The motion for a new trial on the grounds of newly discovered evidence and the absence of appellant on the day of the trial was properly overruled. The application for new trial is not supported by the affidavit of the witness whose testimony was desired, nor does appellant state positively that the witness would swear to the facts set'out by him, and the desired testimony is for purposes of impeachment. No reason is given for a failure to attach the affidavit of the witness to the motion for new trial. Edrington v. Kiger, 4 Tex. 89; Steinlein v. Dial, 10 Tex. 268; Scranton v. Tilley, 16 Tex. 183; Anderson v. Sutherland, 59 Tex. 409; Moores v. Wills, 69 Tex. 109, 5 S. W. 575; Russell v. Nall, 79 Tex. 664, 15 S. W. 635.

[2] The motion for new trial fails to show that counsel for appellant asked for a postponement or continuance of the cause on account of the absence of appellant, and consequently his absence would form no ground for new trial. No excuse was offered in the motion for failure to ask for a continuance of the cause. ' However, a motion to postpone appears in the record, but it was not supported by an affidavit, and-the court did not err in overruling it.

The charge complained of is not erroneous when read in connection with other portions of the charge.' It does not' place the burden of proof on appellant in connection with the oral contract. The charge could not have injured appellant, had it been erroneous as all the testimony showed the contract was made.

The judgment is affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

FLY, J.

This is a suit on a contract for the sale of an automobile, in which appellant agreed to pay and did pay $500 on the car and agreed to pay $500 more, but failed and refused to do so, and appellee sought to recover the additional amount and interest and attorney’s fees. The jury returned a verdict in favor of appellee for $660, and found that a lien existed on the automobile. Judgment was rendered in accord therewith.

[1] The motion for a new trial on the grounds of newly discovered evidence and the absence of appellant on the day of the trial was properly overruled. The application for new trial is not supported by the affidavit of the witness whose testimony was desired, nor does appellant state positively that the witness would swear to the facts set'out by him, and the desired testimony is for purposes of impeachment. No reason is given for a failure to attach the affidavit of the witness to the motion for new trial. Edrington v. Kiger, 4 Tex. 89; Steinlein v. Dial, 10 Tex. 268; Scranton v. Tilley, 16 Tex. 183; Anderson v. Sutherland, 59 Tex. 409; Moores v. Wills, 69 Tex. 109, 5 S. W. 575; Russell v. Nall, 79 Tex. 664, 15 S. W. 635.

[2] The motion for new trial fails to show that counsel for appellant asked for a postponement or continuance of the cause on account of the absence of appellant, and consequently his absence would form no ground for new trial. No excuse was offered in the motion for failure to ask for a continuance of the cause. ' However, a motion to postpone appears in the record, but it was not supported by an affidavit, and-the court did not err in overruling it.

The charge complained of is not erroneous when read in connection with other portions of the charge.' It does not' place the burden of proof on appellant in connection with the oral contract. The charge could not have injured appellant, had it been erroneous as all the testimony showed the contract was made.

The judgment is affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

138 S.W. 216, 1911 Tex. App. LEXIS 828, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reid-v-clarkson-texapp-1911.

Opinion

Related

Cite This Page — Counsel Stack