1875.] TINSLEY a. RUSK Co. 47
Opinion of the court.
Rusk county, and not admissible as evidence in its present
form. (Allbright v. The Governor, 25 Tex., .694.) The
court erred in admitting the statement of the Comptroller
The fourth assignment, that " the court erred in refusing
to allow the defendants to withdraw their announcement
of readiness for trial, on account of the absence of McCammon
from court, after plaintiff's evidence had been closed,
said McCamlmon having been examined by the plaintiff."
A large discretion is vested in the presiding judge as to
when a cause should be withdrawn from the jury and continued
without the consent of all parties to the suit. The
judge, we believe, properly exercised it in refusing to withdraw,
and continue the case. The trial had continued
during one day. On the next morning defendants' counsel
asked the court to withdraw the cause from the jury, previous
to the making a motion for a continuance, as one of
the defendants (McCarmon) was absent; was required as
a witness on his own behalf and that of his co-defendants;
and that it was believed he was too unwell to attend. This
defendant had been examined the day before, for the information
of the court, to lay a predicate for the introduction
of secondary evidence relative to his tax rolls, &c. He stated
that he could not tell where they were; saw them last in
possession of one of his deputies and one of the defendants;
that he knew but little about the business, as it was all
conducted by his deputies; that he never had charge of the
rolls, but that he had a settlement with a former County
Court, and thought it was all right. It is stated in appellants'
brief that McCammon '" may be execution proof, and
indifferent as to the result of the suit, and the sureties
ought to have an opportunity to compel him to testify."
This may be so. The securities, however, took no steps requiring
his attendance. The fifth and seventh assignments,
in reference to the charge of the court and the refusal to
give the instructions asked for by defendants, are not sup
Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42.. St. Louis, Mo.. The Portal to Texas History. http://texashistory.unt.edu/ark:/67531/metapth28531/. Accessed December 19, 2014.