Trammell v. Pilgrim

20 Tex. 158

• Court: Texas Supreme Court
• Decided: July 1, 1857
• Status: Published

Opinion

Wheeler, J.

The application for a continuance was rightly overruled, for two reasons: First, the answer presented no valid defence to the action. The defendant could not set up a parol agreement contemporaneous with the making of the note to vary its legal effect; and this is what he seeks by his answer to do. We must suppose the object of obtaining the testimony of the witness was to prove the averments of the answer. But as such evidence would not have been admissible, there was no error in refusing a continuance to enable the defendant to procure it. And, in the next place, the affidavit does not show any legal diligence, or any reasonable ground to believe that the testimony of the witness will be obtained at another Term of the Court. The statement that he expects to procure his attendance is a mere conclusion of his own, not warranted by any facts disclosed to entitle it to credence. Where a party seeks to excuse the want of the diligence required by law, the sufficiency of his excuse is a matter addressed to the judicial discretion of the Court, which will not, in general, be revised by this Court.

There is no error in the judgment.

Judgment affirmed.