
    E. S. Jordan v. W. S. Jordan et al.
    (No. 3424.)
    June 10, 1885.
    Appeal from Ellis County.
   Opinion by

Watts, J.

§ 830. Partition of personal property of an estate; suit for. maintainable when. This was a suit for the partition between the heirs of Stacy Ann Jordan, deceased, mother of the parties, of the personal property of her estate, the suit being brought by appellants against appellee. Appellant claimed the property as his own by alleged gift from his mother. A partition of the property was awarded, in accordance with the statute. Held: The suit is maintainable. ,It is alleged in the petition that the estate was not indebted; that all the heirs are of age; that there was no administration . upon the estate, and no necessity for an administration.

§ 831. Continuance; application for, held sufficient. Appellant’s application for a continuance was in substantial compliance with the statute. Due diligence to obtain the testimony of the absent witness is shown, and the testimony of said witness was material.» In his application he also embraced another witness by whom he stated he expected to prove the same facts; this witness was present and testified on the trial, but appellant failed to prove said facts by him. This did not warrant the assumption that said facts could not be proved by the absent witness, and did not justify the refusal of the continuance.

Eeversed and remanded.  