
    LEIJA et al. v. CONCHA.
    No. 2547.
    Court of Civil Appeals of Texas. El Paso.
    May 28, 1931.
    
      Harrison, Scott & Rasberry, of El Paso, for appellants.
    Roy D. Jackson, of El Paso, for appellee.
   PELPHREY, O. J.

Tbe statement of tbe nature and result of tbe suit appearing in tbe brief of appellants being agreed to by appellee will be adopted by us:

■ “Appellee, Ramon Concba, a nepbew of tbe deceased, filed in regular form an application to probate tbe Last Will 'and Testament of Jesus E. Concba. Appellants, Raul Leija, Luis Leija, Moise Leija and Eva Leija, grandchildren of tbe deceased, tbe two last named being minors, who acted by and through their next friend, filed a contest of tbe application. On bearing in tbe County Court tbe will was admitted to probate. Contestants duly perfected an appeal to the District Court of El Paso County, Sixty-fifth Judicial District, filed amended pleadings, and demanded a jury.
“The grounds of tbe contest were that tbe will was a forgery and by alternative pleas that tbe deceased lacked testamentary capacity at tbe time of tbe execution of tbe will; that tbe execution was procured by undue influence and further that fraud, by making various untrue representations, was practiced upon tbe testatrix. Upon the verdict of the-jury to special issues, tbe court rendered a judgment admitting tbe will to probate. Contestants’ Motion for a new trial was overruled and they have perfected tbe appeal by filing tbe proper cost bond.”

Opinion.

Tbe points upon which tbe appeal is predicated are: (1) That tbe trial court abused bis discretion in overruling appellants’ motion for a continuance; (2) that tbe requested instruction ón tbe issue of undue influence should have been given; (3) that tbe instruction in connection with issue No. 1 was upon tbe weight of tbe evidence and improper; (4) that certain remarks made by counsel for appellee were improper and prejudicial; (5) that certain remarks made by tbe court to one of tbe appellants were prejudicial; (6) that tbe court erred in excluding certain letters and declarations; (7) that evidence that appellee bad received certain letters from testatrix should have been excluded; and (8) that a document in which tbe husband of testatrix had named appellee as alternate beneficiary was improperly admitted.

Article 2167, Revised Statutes, provides:

“No application for a continuance shall be heard before the defendant files his defense, nor shall any continuance be granted except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.”

Rule 49 for the government of trials in the district court provides: “Absence of counsel will be of no good cause for continuance or postponement of the cause when called for trial, except to be allowed in tbe discretion of the court, upon cause shown or upon matters within the knowledge or information of the judge, to be stated on the record.”

Omitting tbe formal parts, the application filed by appellants, as shown by their bill of exceptions, reads:

“Raul Leija, Luis Leija, Moise Leija and Eva Leija, contestors in tbe above entitled cause made this their First Application for a continuance and say that they cannot safely go to trial because on October 22, 1930, W. W. Bridgers, who was tbe attorney employed by them and who represented them in tbe contest and Probate of the Will in tbe County Court of El Paso County, Texas, notified them that be bad withdrawn from the case and on tbe morning of October 23, 1930, tbe date this cause bad been regularly set for trial, they employed the firm of Harrison, Scott.& Rasberry, who represent them, and within thirty minutes after said attorneys agreed to accept employment it was necessary for them to be in court and select tbe jury, and as tbe court knows the contest and Probate of tbe Will is based, among other things, on tbe allegation that tbe testatrix was not of sound and disposing mind and memory and tbe execution of said will was procured by undue influence and at tbe time of employment said attorneys knew nothing of said case and have not had an opportunity to examine tbe numerous witnesses that would be called to testify on tbe trial thereof, and have not bad an opportunity to investigate and brief the questions of law involved, and that in a suit of this nature there will necessarily toe a number of witnesses who said attorneys should interview before tbe trial thereof, and that contestors have not bad a full opportunity to apprise said attorneys of tbe ground of their contest and comply with instructions issued by said attorneys in regard to procuring the names and addresses of all tbe witnesses; that attorneys for con-testors have been unable to see Vicente Alvarado and Aurelia Concba, witnesses in this case whom contestors state on information’ and' beliéf are familiar, with tbe facts and saw deceased just prior to her death and know her condition, and that although diligent efforts were' made contestors were unable to get in touch with them.
“Contestors further state that W. W. Brid-gers withdrew from this case because he recommended and urged contestors to accept one thousand dollars ($1,000.00) in- full settlement of their claim, and that contestors feel that such settlement was not a fair, equitable and just one and declined to follow the advice of their attorney, whereupon he announced that he would not represent them in the trial of the case in this court.
“The contestors further state that their attorneys will be in a position to try said cause at the next term of court, and that this continuance is not sought for delay only, but that justice may be done.”

None of the facts set forth were disputed; the trial court, however, filed the following qualification to the bill of exceptions: “This cause was regularly set for trial on the morning of October 23, 1980, which was Thursday. After the Motion for Continuance had been overruled, attorneys for contestants proceeded to select the jury, completing that duty about 10:30 A. M. on the* morning of October 23,1930. As soon as the jury had been selected, impaneled and sworn and the pleadings read to them, they were excused until nine o’clock on the morning of October 24th, 1930, and the attorneys for contestants were instructed that they might have the balance of that day in which to prepare thdir case for trial. Testimony was introduced throughout the day of October 24, 1930, and until' noon Saturday, October 25, at which time the jury was excused until nine o’clock Monday morning, on which date the case was completed.”

Most of thp reported cases dealing with the right of parties to a continuance are those where defendants had made the applications.

In most cases the granting or refusing of a motion for a continuance is a matter within the wide discretion of the trial court. The exercise of that discretion is, however, subject to review, 9 Tex. Jur. p. 757; Fidelity Oil Co. v. Swinney (Tex. Civ. App.) 254 S. W. 137; Lee v. Zundelowitz (Tex. Civ. App.) 242 S. W. 279; Gulf, C. & S. F. Railway Co. v. Rowland (Tex. Civ. App.) 35 S. W. 31.

In the case at bar it appears that the witnesses named in the application appeared and testified; therefore no harm could have resulted from the court’s action in so far as they were concerned.

It appears, however, that the- day before the case was set for trial the attorney who had represented the appellants in the • county court withdrew from the case; that the firm now representing them was employed only thirty minutes before the time for trial; that they, in ignorance of the issues and what evidence might be available, were forced to select a jury without any opportunity to prepare for trial.

The right to be represented by counsel is a valuable right, and, in order for counsel to properly represent a client, he must have an opportunity to familiarize himself with the facts and the law of the case.

It is also a matter of common knowledge, among the legal profession at least, that an attorney who is not acquainted with the identity of his witnesses and not aware of the facts to which they will testify cannot effectively represent his client in the selection of a jury. These facts being true, then appellants did not have that kind of representation in the trial of this case that the law contemplates all parties should have.

From the record it appears that the case was ably handled by the counsel, but there might have been an entirely different jury selected if counsel had been familiar with all of the facts of the ease.

We are convinced that the trial court was actuated by the highest motives in the action that he took, yet we feel that, under the peculiar circumstances, he abused his discretion in the matter, and that the judgment must be reversed and the cause remanded.

The other matters complained of will probably not arise on another trial, and therefore it will be .unnecessary to discuss them here.

Reversed and remanded.  