
    Hensley’s Adm'rs v. Lytle.
    The refusal of a continuance may be assigned for error.
    The law has provided parties with the process of the court by subpcena and (íd case of non-observance thereof) attachment to enforce the attendance of witnesses; and where a party omits to employ those means when practicable, the omission will in general be fatal to his application for a continuance. If he elects to employ other means than those provided • by the law, it is at his own peril. (Note 89.)
    The unexpected absence of a witness who is an attorney of the court and who promised to attend, and the absence of a witness whose attendance could not be procured by subpoena, the cause of whose inability to attend is such that an attachment for contempt would not be issued against him for failing to obey a subpoena, have been held to be exceptions to the general rule.
    Irregularities which do not affect the final result of the suit afford no ground for reversing, the judgment.
    Ei vor from Calhoun. The defendant in error brought suit against the plaintiffs In error to recover the value of services rendered the intestate of the latter by the former as an attorney at law. The character and amount of the services were specially described in the petition, and it contained a statement that the account was presented in due form to the administrators and by them disallowed within the time prescribed by law.
    At the Fall Term, 1849, the defendants answered to the merits by a general denial. The cause was continued by consent, and at the next term by operation of law. At the Fall Term, 1850, the defendants obtained leave to amend, and as an amendment of their answer filed a general demurrer. They also moved a continuance, founded on an affidavit of the absence of a material witness, who had not been subpcenaed, but who, the affidavit stated, lived so near the court-house that he could be called in at any time, and who was known by the affiant to be willing and determined, if practicable, to attend the trial, but who had left the State since the last term of the court with the intention and expectation of returning in time to be in attendance at the trial, but had been unavoidably detained abroad. A continuance was refused. On motion of the plaintiff the demurrer was stricken out. There was a verdict and judgment for the plaintiff, and the defendants brought a writ of error.
    The errors assigned were the rulings of the court—
    1st. In refusing a continuance.
    2d. In striking out the-demurrer.
    
      A. H. Phillips, for plaintiff in error.
    I. The ruling of the court below on the subject of continuances can be assigned for error. (Horton v. Jones, Dallam, 476 ; IVard et al. v. Boon, Id., 5G1; Borden et al. v. Houston, 2 Tex. R., 601.)
    II. The objection that will probably be urged to the affidavit is the diligence as set forth in procuring the testimony. In answer to this objection it maybe replied that the law by its terms does not state that proper diligence consists in ordering a subpcena, but it requires the party to state the diligence, evidently implying that diligence may be exercised in a variety of ways. Want of diligence constitutes laches, but in this case the statement clearly shows that there was no laches on his part. The witness was not only within' call of the court at his residence and place of business, but had expressed his willingness and determination to attend the court and testify. That he was called upon to secure his attendance, and that he expressed himself as above stated in answer to the call, rebuts the presumption of laches on the part of the defendant.
    Besides, the language of the witness as stated in the affidavit is emphatic and shows his willingness to attend not only, but that he felt his testimony was important and that the ends of justice rendered it necessary that the defendant should have the benefit of it. His non-attendance was entirely accidental, as stated, and it would have been the same had a subpcena been issued; ■and. served. Had the latter been done, it is true,1 diligence would have been implied, but it does not hence follow that it cannot be shown aliunde.
    
    Note 89. — McMahan ». Busby, 29 T., 101; Bryan & Lyman v. Jones, 88 T.. 205.
    
      W. Alexander, for defendant in error.
    I. The court did not err in overruling the application for a continuance. The affidavit filen does not show legal diligence, but only attempts to show why none was used. At all events, the continuance will not be readjudicated by this court. (Ward et al. v. Boon, Dallam, 561; Dow et al. v. Hotchkiss, 2 Tex. R., 471.)
    TI. The court below did not err in ordering the demurrer to be stricken out. It was a general demurrer, and was only filed after the cause had been continued by consent. It did not present itself in due order of pleading. (Jones v. Howland, Dallam,' 451; Rilcer v. Freeman & Co., Id., 5S4; Coles v. Kelsey, 2 Tex. R., 541.)
   Wheeler, J.

In the case of Hipp v. Bissel (3 Tex. R.) the judgment of the District Court was reversed because of the improper refusal of a continuance. In that case there had been a strict and literal compliance with the requirements of the statute. But in the present case there has not been such compliance. The affidavit does not state that the party has used due diligence to obtain the testimony of the witness. It admits that the witness liad not been subpoenaed, but seeks to excuse the non-observance of this ordinary diligence by setting forth the circumstances which had induced the belief on the part of the affiant that the witness would be present at the trial. The facts stated, however, in our opinion, do not constitute that diligence which the law requires. It has provided ■parties with the process of the court by subpoena, and in case of its non-observ•ance, attachment to enforce the attendance of witnesses; and where a party has omitted to employ the means provided by the law when practicable, the omission will in general be fatal to his application. If he elects to employ other means than those provided by law, it will be at his peril. Accordingly it is held that where a party neglects to subpoena a witness and relies on his promise to attend, his non-attendance will not be a cause of continuance. (Anthon, 198; 1 Rep. Con. Ct., 198.) Au exception to this rule has been allowed where an attorney of the court was a witness and promised to attend, (2 Dall. R., 183,) and also where a material witness is absent whose .attendance could not be procured by subpoena, the cause of whose inability to attend is such that an attachment for contempt would not be issued against him for failing to obey a subpoena. (2 Scam. R., 454.) But the present case does not come within these exceptions, and we are of opinion that’ there was no error in refusing a continuance.

The action of the court in striking out the demurrer was at most a mere irregularity, which did not effect the final result of the suit. It is not perceived nor is it insisted that the petition is in any respect defective or insufficient. The demurrer, therefore, had it been entertained, must have been overruled. The mere irregularity of striking it out when there should have * judgment of the court overruling it will not authorize a reversal of the judgment. Ho essential right of the party was affected by the ruling.

We are of opinion tliat there is no error in the judgment, and that it be affirmed.

Judgment affirmed.  