
    No. IV.
    Ward et al. v. Boon.
    (See .)
    
      Appeal from Red River County.
    
    
      
      .—Ward v. Boon, p. 561.
      Action of court in granting or refusing continuances will not be revised unless it is plain that injustice has been done. Hart v. King, Dal., 456; Hipp v. Bissell, 3 T., 18; Hipp v. Huchett, 4 T., 20; Ayers v. Duprey, 27 T., 593; Peck v. Moody, 33 T., 84; Addington v. Bryson, 1 App. C., sec. 1292; Texas Express Co. v. Scott, 2 App. C., sec. 72. Where the allowance or refusal of the continuance is within the discretion of the court a very clear case of abuse of discretion must be shown to authorize a reversal. Lewis v. Williams, 15 T., 47; Byne v. Jackson, 25 T., 95; Baldessore v. Stephanes, 27 T., 455; McMahan v. Busby, 29 T., 191; Wiggins v. Fleishel, 50 T., 57; Allyn v. Willis, 65 T., 65; M. P. Ry. Co. v. Christman, 65 T., 369; Guy v. Metcalf, 83 T., 37; T. & P. Ry. Co. v. Hall, 83 T., 675; Hannah v. Chadwick, 2 App. C., sec. 518.
    
   OCHILTBEE, Justice.

—Boon sued Ward, Linnecum and others in the District Court of Bed Elver County at the spring term, 1842, in an action of trespass vi et armis, charging that the defendants had beat, bruised, and otherwise maltreated him, etc.; and laid his damages at $20,000. The parties were neither of them served to the first term of the court. At the subsequent or fall term, 1842, the writs were returned “executed” on all the defendants. Ward was served on the 25th of August, 1842. The term of the district court commenced on the first Monday in October thereafter.

At that term of the court, viz., on the 7th of October, Ward made an application for a continuance, on the ground that he had not been able to procure the attendance of his witnesses. W. Peacock, one of the witnesses, lived at the distance of sixty or sixty-five miles from the courthouse. Afterwards, to wit, on the 14th day of October, Ward filed his supplementary affidavit, alleging the discovery on the day previous (the 13th), that one Robert Smith, a transient person, was a material witness, and praying for a continuance. The affidavit contained the usual necessary averments. Morton and Wilson at the same time filed their affidavit for a continuance, alleging that Robert Smith, a transient person, was a material witness for their defense; that they had only come to the knowledge of his materiality, etc., on that day.

The court overruled the several applications, whereupon came a jury, etc., who found the defendants guilty of the assault and battery, as charged in the plaintiff’s petition, and assessed his damages at $1475 and costs of suit; upon which said verdict, the judgment of the court was entered, and the defendants gave notice of appeal. The statement of facts submitted presents also the following matter:

“During the progress of the trial in this cause, the plaintiff introduced Abner H. McKenzie as a witness. Upon the suggestion of said McKenzie that his testimony might render himself liable, and that therefore he hesitated to answer the questions, plaintiff in open court stated that he released McKenzie from all damages that he, McKenzie, was liable to him for, and in consideration of any trespass that he, McKenzie, committed at the time and place mentioned in plaintiff’s petition. Witness then stated that at the time of the alleged trespass in plaintiff’s petition, at the request of Linnecum, one of the defendants, that some one would lend said Linnecum a handkerchief, witness brought said Linnecum his handkerchief, with which said Linnecum blindfolded the plaintiff.”

Defendants then moved that the suit be dismissed, which was overruled. Defendants then asked leave to withdraw their plea and plead a release puis darein continuance, which was overruled; to which defendants excepted.

There are two questions to be decided in this case.

1. Did the court below err in refusing the applications for a continuance ?

2. Was the release of McKenzie such a release as would operate in favor of the defendants, who, it is alleged, were cotrespassers ?

We are of opinion that an application for the continuance of a cause addresses itself to the discretion of the court, and is to be determined by the court with a proper regard to the circumstances of the case and the nature of the application. And this discretion, in whatsoever manner exercised, will not be revised by this tribunal. We believe that there is nothing in our statutes, or in the rules prescribed for the government of the district courts in regard to continuances, which would lead us to the adoption of a different conclusion. 1 Ala. (N. S.), 276; Hill v. Gayle and Bower, 2 Cond. Rep. (U. S.), 97, 172.

A release entered on the minutes of the court is not such a release as would be binding on the party. Had the witness McKenzie been incompetent from interest, such a release as was here entered would not have made him competent. 2 Porter, 401. A release should be signed, sealed and delivered to the witness to have made it binding. Id. But in this case the release was wholly without consideration and void, of course. If McKenzie had been in truth a joint trespasser, the statute of limitations had barred all right in Boon to maintain an action against him when called on to testify.

Let the judgment of the court below be affirmed.

Affirmed.

Concurred in by

Judges Baylor and Morris.

Judge William J. Jones says: “I concur in the foregoing opinion, with the understanding, that the error of the judge (if any) may be reached by a motion for a new trial, which should be made by the party refused the continuance in the court below.”

Chief Justice Hemphill says: “I concur in the result of the foregoing opinion, but dissent from that portion thereof which decides that the discretion of the court below in relation to continuances is final, conclusive, and not revisable by this tribunal, in whatever manner that discretion may have been exercised.”

Judges Jack and William E. Jones say: “We dissent from so much of this opinion as decides that no appeal lies from the decision of a district judge in refusing to grant a continuance upon proper showing. We think the judgment in this case ought to be reversed and the case remanded for a new trial, on the ground that the district judge erred in not granting a continuance. On the other point decided we concur with the majority of the court.”  