Reports of cases argued and decided in the Supreme Court of the State of Texas during December term, 1848. Volume 3. Page: 18
vi, 659 [660] ; 22 cm.View a full description of this book.
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X18 HiIPP VS. BISSELL.
We find nothing in the record in this case to warrant the
,conclusion that the judge did not exercise a sound discretion
in overruling the motion for a continuance.
It has been held, and no doubt rightly, that where a party
has had repeated continuances granted to him, a further continuance
may properly be refused, though he make oath that
a material witness, who had been duly summoned, is absent
and sick. [3 Munf. R. 219; 3 Litt. 450.]
The application for a new trial came too late, after a motion
in arrest of judgment. [Acts 1846, p. 392, sec. 110.]
The provision of the statute which, in a certain event, gives
a party the right to testify in his own case before a justice
[Acts 1848, p. 174, sec. 17], is doubtless equally applicable to
that case when tried on appeal in the district court. But, in
the present case, the party does not appear to have complied
with the prescribed condition, and his application was, therefore,
rightly refused.
The several rulings of the court complained of, do not seem
to us to present questions of sufficient difficulty or importance,
to require a more particular examination.
We are of opinion that the judgment be affirmed.
LoUTIS HIPP VS. THEODORE BISSELL - Appeal from Guadaloupe
County.
The discretion to be exercised by a court, upon an application for a continuance,
is a legal and not an arbitrary one, and is subject to revision. [4 Tex.
20; 5 Tex. 497; 10 Tex. 233; 29 Tex. 191.]
There may be cases to which no known rules, or fixed principles, can be applied;
and in such cases, the discretion exercised cannot be the subject of
revision. But when there are known rules of action prescribed, no exercise
of discretion can dispense with them.
No suggestion of errors in a record can be received, against the statement of
the clerk, as sent up in the transcript, except upon a suggestion of diminution,
and an application for a certiorari to send up a more perfect transcript.
This was a suit brought by the appellant to foreclose a mortgage,
given by the appellee, to secure the payment of three
hundred dollars.
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during December term, 1848. Volume 3., book, 1881; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28571/m1/24/: accessed April 19, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .