
    HUTSON v. CADE et al.
    (No. 9165.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 15, 1919.)
    1. Appeal and error (&wkey;966(2) — Continuance &wkey;>7 — Nonstatutory application is addressed to discretion of court.
    Where an application for continuance is not statutory, the party is not entitled to continuance as a matter of right, but the application is addressed to the sound discretion of the court, exercise of which will not be revised' unless a pronounced abuse is shown.
    2. Appeal and error <&wkey;920(2) — Correctness op refusal of continuance presumed.
    In support of the action of the trial court in refusing continuance, every presumption of its correctness consistent with the record is to be indulged.
    3. Appeal and error <&wkey;966(2) — Refusal FOR ABSENCE OF. DEFENDANT AND WITNESS NOT REVERSIBLE ERROR IN VIEW OF DEFEC- ' TIVE APPLICATION.
    In view of defects in defendant’s application for continuance, and the state of the record as a whole, the action of the trial court in refusing continuance on account of engagement in trial of another suit of defendant and his claimed necessary witness held not reversible error; there being no showing that any process had been issued for the witness, that any effort had been made to take his or defendant’s deposition, of what he or defendant would have testified to, etc.
    Appeal from District Court, Eastland County a Joe Burkett, Judge.
    Suit by M. E. Cade and others against J. F. Hutson. Prom judgment for plaintiffs, defendant appeals.
    Affirmed.
    Scott & Brelsford, of Eastland, for appellant. •
    J. H. Beall & Son, of Sweetwater, for ap-pellees.
   BUCK, J.

This is a suit instituted by plaintiffs to cancel an oil and gas lease on certain lands in Eastland county. Only one question is presented in this appeal, to wit: Did the trial court err in.overruling defendant’s motion for a continuance? The'following is the statement under appellant’s only assignment as contained in his brief:

“The district court of Eastland county convened on November 18, 1918, and this case set for November 21, 1918. Upon call of this case on November 21st, defendant’s attorneys moved the court to postpone this cause on account of the absence of the defendant and his only witness, both of whom were then in attendance upon the district court of Comanche county, Tex., and then engaged in the trial of a case in which defendant and his said witness were parties, whereupon the court postponed the trial of this cause until November 22, 1918. Upon call of this case on November 22d, attorneys for defendant, by motion duly sworn to, moved the court to postpone or continue this cause, on account of the absence of defendant and his witness then engaged in the trial of an important case in the district court of Comanche county, Tex., which motion the court overruled, to which ruling of the court the attorneys for defendant duly excepted, as shown by bill of exception No. 1. The cause' proceeded to' trial, plaintiffs introduced evidence, and judgment rendered for plaintiffs.”

The trial court approved appellant’s bill of exception to the overruling of his motion for continuance in the following words:

“Approved, with explanation that this case was set at a previous term for a day certain and the defendant was at Comanche on a new case, that is an appearance, case, and this case was postponed two days awaiting defendant.”

Neither in defendant’s motion for a continuance, presented and sworn to by his attorney, nor in his inotion for new trial, sworn to by defendant himself, is it shown that any process had been issued for the witness Kirkpatrick, nor that any effort had been made to take the deposition of said witness or of the defendant himself; nor is it shown what said witness or the defendant himself would have testified if present. No diligence is shown, exhept—

“That on the night of November 20, 1918, af-fiant was informed by said witness, who was then in Comanche, Tex., 75 miles distant from Eastland, that the defendant, J. E. Hutson, and said witrless, A. B. Kirkpatrick^ were parties to a suit pending in the district court of Comanche county, Tex., and set for trial on November 21, 1918, being the same day this cause was set down for trial in this court, and that it would be impossible to be present at both places the same day. That upon the call of this case for trial on the 21st day of November, 1918, at the request of defendant’s attorney this case was postponed until November 22d, at 1 p. m., in order to permit the attendance of the said defendant and his said witness, A. B. Kirkpatrick, in this court in the trial of this cause. That affiant had communicated with said defendant, J. E. Hutson, and his said witness, A. B. Kirkpatrick, on the evening of November 21st, and was informed by said Hutson that said cause in the district court of Comanche county was then on trial and would continue through November 22, 1918, and that he nor the said witness could possibly attend in this court on said November 22, 1918. * * * That it is material for the rights of the defend; ant that defendant himself and his said W'itness be present on the trial of this cause to assist in the conduct of his defense in this cause, and to testify as witnesses herein. That without the attendance of said witness and the said defendant, that affiant, his attorney, will be un-ablé to prbperly present his defense in this cause. That said defendant and ihis said witness will be able to be present at the trial of this cause, if the same is postponed or continued- until the next term of this court.”

The motion for continuance or postponement fails to disclose whether such motion was the first, second, or third application for such purpose; neither does the motion comply with the statutory requirements as laid down in article 1918, Vernon’s Sayles’ Texas Civil Statutes, as to showing the materiality of the testimony of said witness, or that defendant had used due diligence to procure such testimony, stating such diligence, and also what he expected to prove by said witnesses, and also that the continuance was not sought for 'delay only, but that justice might be done.

Where' the application is not statutory, a party is not entitled to continuance as a matter of right; but such application is addressed to the sound discretion of the court, and will not be revised unless a pronounced abuse of such discretion be shown. T. & P. Ry. Co. v. Hall et ux., 83 Tex. 675, 19 S. W. 121; Wiggins v. Fleishel, 50 Tex. 57; T. & P. Ry. Co. v. Hardin, 62 Tex. 367; I. & G. N. Ry. Co. v. Fisher, 28 S. W. 398, writ of error refused in 93 Tex. 710, 29 S. W. xxi. In support of the action of the court in refusing the continuance, every presumption of its correctness consistent with the record is to be indulged. I. & G. N. Ry. Co. v. Newburn, 94 Tex. 310, 60 S. W. 429.

We are not able to hold that the trial court erred in failing to grant the continuance or a postponement. Plaintiffs alleged fraud and misrepresentation on the part of defendant’s agent, one George Hardin, in securing the signature and acknowledgment of those members of the Cade family who in fact did sign the lease, and that said Hardin, as defendant’s agent, represented to those plaintiffs signing the instrument that it would not be operative and would not be delivered to defendant until certain other members of the family, sons of Mrs. M. E. Cade, and interested in the ownership of the property, had executed such instrument. Defendant alleged:

That plaintiffs executed said lease “and delivered the same to one George Hardin to be delivered to this defendant; that, after plaintiffs had executed said lease, this defendant agreed to take . said lease or the interest in said land so owned by said plaintiffs and pay them the pro rata amount- so agreed upon as being the amount to which plaintiffs were entitled under the agreement, and authorized the bank to pay to plaintiffs the said amount of money, and through said bank tendered to plaintiffs the amount of money to which they were entitled under said lease agreement, but said plaintiffs, so defendant is informed, refused to accept said money.”

Hardin did not testify, nor did defendant’s application for continuance include his name. But the insistence of appellant in his brief is that Kirkpatrick was his “only witness.” No reason is disclosed why the testimony of Kirkpatrick could not have been secured. '

It is in evidence that some bank sent a check “for three hundred and some odd dollars” in payment of the annual rental qn the leased land, containing 738 acres, and that Mrs. Cade, the mother, received said check, and that on the check was a notation of instructions that the banker was not to pay it until all of the heirs signed the lease. This evidence very strongly corroborated the contention, of the plaintiff that the understanding ‘between plaintiffs and the witness Hardin, who- was the notary public taking the acknowledgment, was that the lease was not to be operative until all the heirs had executed it.

In view of the defects in the application heretofore pointed out, ‘and in view of the state of the record as a whole, we have concluded that no reversible error is shown in the action of the court in refusing the continuance, and the judgment is therefore affirmed. 
      «grnoFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     