Reports of cases argued and decided in the Supreme Court of the State of Texas during December term, 1848. Volume 3. Page: 20
vi, 659 [660] ; 22 cm.View a full description of this book.
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20 HIIPP VS. BISSELL.
causes, the refusal of the court to grant the continuance asked.
The motion was overruled, and the defendant appealed.
HANocIK and YAN DERLIP for appellant.
NEILL for appellee.
Mr. Justice WHEELER delivered the opinion of the court.
There appear to have been other points made in the district
court, but the only ground relied on in argument for a reversal
of the judgment, and the only question which is deemed
to require particular notice, is as to the propriety of the ruling
of the court in refusing a continuance.
It does not appear, and it is difficult to conceive, upon what
ground a continuance was refused. It was a first application,
and went even beyond what has ever been required by any
statute, upon the first application for a continuance. It
embraces, indeed, a literal compliance with the requirements
prescribed on a second application. [Acts of 1848, p. 110.]
It does seem, therefore, that a continuance ought to have been
granted. And in this conclusion we are confirmed, when it is
seen that in the progress of the trial the testimony of Frederick
Bissell, one of the witnesses, on account of whose
absence the continuance had been moved, was most material
and essential to prove his signature to the receipt for one hundred
dollars.
That the evidence then was material, and that the defendant
was denied the benefit of it, and apparently without any fault
of his, is undeniable. In view of these facts, we cannot resist
the conclusion that injustice may have resulted to the defendant
in the trial. They at least afford, in the language of
Blackstone (3 Com. 392), " strong probable grounds to suppose
that the merits have not been fairly and fully examined, and
that the decision is not agreeable to the justice and truth of
the case."
It seems clear that the party was entitled to a continuance,
and the only question, we think, which can arise is, whether
this court will revise the decision of the district court refusing
it. Upon this question there is a diversity of decisions and
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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/m1/26/: accessed April 24, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .