W. Arnold & Co. v. D. C. Hockney & Bro.

51 Tex. 46

Opinion

Moore, Chief Justice.

If the court below erred in any of its rulings in this case, it is not shown by the record before us. The only objection to the judgment suggested in appellants’ brief which seems to us worthy of notice, is the refusal of the court to continue the case on aifklavit filed by appellants’ attorney.

If the application was for a first continuance, the affidavit was sufficient and the continuance should have been allowed, but the affidavit was clearly insufficient to warrant a second continuance. The affidavit does not state the facts expected to be proved by the absent defendant or his witnesses, but, instead thereof, merely states inferences and conclusions which, it is asserted, could be established if said parties were present, so far, at least, as the desired testimony is in any way applicable to the case, or would be admissible. The record shows that the case had been pending in court some two or three years when the application was made, but whether it bad been previously continued by appellants is not shown; but if it had not been, it was their duty to have shown it in their bill of exceptions to the refusal of their application; for, as has often been said, it is for the party alleging error to lay his finger upon it, or this court must otherwise presume the judgment of the court below to be correct.

The judgment is affirmed.

Affirmed.