Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 370
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370 TEX. & PAC. R'Y Co. v. HARDIN. [Tyler Term,
Opinion of the court.
reverse a judgment because the court below overruled a motion for
a continuance.
The application states that the interrogatories and agreement to
take the depositions of the witnesses Bixler, Castello, Gibson, Armstrong,
Williams and Dillon, were sent to a responsible and reliable
person in Howard county, Texas, where those witnesses were said
to live, that they might be taken by an authorized officer. There
is no statement that the interrogatories were ever delivered to
any officer authorized to take the depositions, or that any step was
taken in reference thereto by the person to whom the interrogatories
and agreement were sent. It is not shown that the evidence of the
witnesses would have tended to prove any of the defenses set up in
the answer, further than is so shown by the general averment that
their testimony is material; nor is it shown that the appellant expected
to have their testimony at the next term of the court.
It is not shown that the witnesses actually resided in Howard
county, nor that they lived there when the interrogatories and agreement
were forwarded and had since removed, and that thereby the
appellant had been unable to ascertain their residences and procure
their testimony. Such facts should have been shown in an application
addressed to the discretion of the court. Trammell v. Pilgrim,
20 Tex., 160; McMahan v. Busby, 29 Tex., 195; Baldessore v. Stephanes,
27 Tex., 455; Byne v. Jackson, 25 Tex., 96; Townsend v.
State, 41 Tex., 135; Chilson v. Reeves, 29 Tex., 279.
The interrogatories to the witnesses Jackson and Allen, with the
agreement to take their depositions without commission, were sent
to the clerk of the district court for Tarrant county, where the witnesses
resided, on or about May 3, 1884; and the application states
that soon after the clerk received the interrogatories and agreement,
he notified appellant's counsel that Allen had gone to Sedalia,
Missouri, but promised to take the deposition of Jackson.
The statement as to what occurred in reference to getting the testimony
of Jackson after the papers went into the hands of the
clerk, as made in the application, is correctly set out in brief of
counsel for appellant as follows:
"That the said Hartsfield, district clerk, as aforesaid, advised defendant's
said attorneys that he would take t-he depositions of the
said Dr. Jackson as soon as he returned to the city of Fort Worth,
which he thought and understood would be about June 1, 1884, and
defendant's attorneys wrote him to take the same as soon as Jackson
returned. That on or about June 18, 1884, defendant's attorneys,
learning that the depositions of the said Jackson had not been
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28512/m1/392/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .