Texas Transportation Co. v. Hyatt & Henning , 54 Tex. 213 ( 1881 )

Gould, Associate Justice.

Hyatt & Henning sued the Texas Transportation Company for a balance dué on an alleged contract for the construction of a wharf, for the reasonable worth of extra work on the wharf, alleged to have been done at the request of defendant, and for damages for delays, etc., alleged to have been caused by defendant. The defendant having pleaded a general demurrer and general denial, filed an application for a continuance, which was overruled by the court.

The first question presented is, whether the pleadings of defendant were sufficient to enable it to claim a continuance. In support of the ruling of the court appellee cites the case of Fowler v. Buckner, 23 Tex., 84, where the action was on a promissory note, and it was held that, the general denial constituting no defense, the continuance was rightly refused. In the present suit the general denial did constitute a defense, under which the defendant might have introduced evidence rebutting plaintiffs’ evidence of performance of their contract, of extra work done and its reasonable worth, and of damages as alleged. We are of opinion that the pleadings of defendant were sufficient to enable it to demand a continuance on a proper showing.

But the further question is presented, whether defendant, seeking a first continuance, failed to show diligence, in that it failed to show a tender of their fees to the absent witnesses. The court in signing the bill of exceptions refers to the case of Bryce & Lyman v. Jones, 38 Tex., 205. In that case it was made to appear, by counter affidavits, that the case had been regularly reached on the preceding day when the absence of the witnesses became known, and at the request of plaintiffs the case was put off until the next day. The court held that the plaintiffs should have resorted to an attachment, and not having placed themselves in a condition to do so by tendering the witnesses their fees, they were wanting in diligence. The facts of that case were peculiar, and the decision does not necessarily involve the rule, that in ordinary cases a first application fór a continuance must show that the witness fees were tendered. It is not believed that such a rule has heretofore prevailed in practice, and in our opinion the court erred in enforcing it.

The application for a continuance was sufficient, and it was error to refuse it.

After examining to some extent the other questions presented, we have not thought it necessary to pass upon them, the case otherwise being mainly one of fact.

The judgment is reversed and the cause remanded.

Reversed and remanded.

'[Opinion delivered January 18, 1881.]