
    John H. Conner v. George A. Sampson and another.
    An application for a first continuance, which does not show that the witness has heen served with a subpoena a reasonable time to enable him to be present at the trial, is defective; because it does not thereby appear, that due diligence has been used to procure the attendance of the witness.
    What this reasonable time is, must depend upon the distance of the witness from the court, and other surrounding circumstances.
    Error from Travis. Tided below before the Hon. A. W. Terrell. Suit by defendants in error against plaintiff in error. Defendant in the court below applied for a continuance, on account of the absence of a material witness; and made affidavit that he had used due diligence to procure his testimony, by having the witness duly subpoenaed, during the term at which the application was made; but it did not appear from the affidavit, or otherwise, on the record, at what time, or under Avhat circumstances, the Avitness was subpoenaed. The court beloAV overruled the application.
    
      Smith and Campbell, for plaintiff in error.
   Roberts, J.

The application for a continuance is defective in this, that it does not show that the Avitness had been served Ayith a subpoena, a reasonable time before the trial, to enable him to be present at the trial. The point was decided at Tyler, (1858,) that it must appear from the affidavit, unless it otherAvise appear of record, that reasonable time has been given the Avitness to make necessary preparations to attend the court at the time of the trial, othenvise the party could not be held to have used due diligence to procure his attendance. What this reasonable time is, must depend upon the distance of the Avitnoss from the court, and other surrounding circumstances. A party should, if practicable, have his witnesses served Avith a subpoena before the commencement of the court. If, hoAvever, he relies upon having done it during the term, he must show that it has been done a reasonable time before the trial.

This affidavit would be literally true, although the Avitness had been served with a subpoena twenty miles from the courthouse five hours before the cause Avas called for trial. There is no return upon a subpoena, or other evidence on the record, AA'hich shows that diligence has been used. Without some such exhibition of diligence, in some way or other, upon the record, we cannot say tlrnt the court below erred in overruling the application for continuance.

Judgment affirmed.  