Freestone County, Texas
Court Cases




Cases argued and decided in the Supreme Court of the State of Texas, during the 
latter part of the Galveston term, and the Austin term, 1879. Volume 51. Page: 47

47                ARNOLD V. HOCKNEY. [Galveston Term, 1879.]


    W. ARNOLD & CO. v. D. C. HOCKNEY & BRO.
1. CONTINUANCE -MATERIAL TESTIMONY.-See application for continuance held 
insufficient as a second application, the testimony sought not being material.
2. CONTINUANCE-PRACTICE.-A bill of exceptions to the overruling of an application 
should show whether it was a first or second application.

APPEAL from Freestone. Tried below before the Hon. D. M. Prendergast. 
  June 24, 1875, D. C. Hockney & Brother brought suit on three promissory notes 
against William Arnold & Co. in the District Court of Freestone county. An 
attachment was obtained, and was levied on a large amount of property of the 
defendants. 
  The defendants pleaded general demurrer and general denial, and, in reconvention, 
that the attachment was wrongfully and maliciously sued out, and for damages.
  The case was continued, (at whose instance it does not appear,) until April 5, 
1878, when an application for continuance was made, supported by the affidavit 
of the attorney for defendants. The affidavit, in form, was as for a second 
continuance.
  The defendants expected to prove by the absent witnesses that they (defendants) 
were not about to transfer their property

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Opinion of the court.
 for the purpose of defrauding their creditors, as alleged in the affidavit for 
attachment by one of the plaintiffs; that plaintiffs had no grounds for attaching 
the property of defendants, but the attachment was sued out and caused to be levied
through malice and for the purpose of injuring defendants' property, and vexing 
and harassing then without anlly probable cause; and, further, that the property 
levied on was worth $17,000 at the date of levy; (the debt was about $1,700;)
*     *   " that they have never tried to avoid paying their just debts, but have 
always been willing and prompt."
  One of the defendants.was also absent, from an accidental injury, rendering his 
attendance impossible, by whom (the application stated) it was expected to prove, 
in addition, "that he had proposed to one of the plaintiffs, at or about the 
filing of the suit, before the attachment was levied, that he might take any of 
his (defendants') property at a reduced price in satisfaction of said claim, or 
that if they (plaintiffs) or either of them would assist him in selling, or could 
find a purchaser for any of his property, that he would sell, and they should 
have the proceeds of such sale."
  The application was overruled. The bill of exceptions does not show whether it 
was a first or second application for continuance.
  On the refusal of the motion for continuance, the defendants withdrew their 
plea in reconvention. The court tried the case without a jury, and rendered 
judgment for plaintiffs for the amount claimed, and a sale of the property 
attached was ordered. The defendants appealed.
    Seely & Gullette, for appellants.
    L. D. Bradley and W C. McLenzore, for appellees.
    MOORE, CHIEF JUSTICE.
  If the court below erred in any of It rulings in this case, it is not shown by 
the record before us. The only objection to the judgment suggested in appellants' 

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brief which seems to us worthy of notice, is the refusal of the court to continue 
the case on affidavit filed by appellants' attorney.
  If the application was for a first continuance, the affidavit was sufficient 
and the continuance should have been allowed, but the al1 lavit was clearly 
insufficient to warrant a second continuance. The affidavit does not state the 
facts expected to be proved by the absent defendant or his witnesses, but, instead
thereof, merely states inferences and conclusions which, it is asserted, could 
be established if said parties were present, so far, at least, as the desired 
testimony is in any way applicable to the case, or would be admissible. The 
record shows that the case had been pending in court some two or three years when 
the application was made, but whether it had been previously continued by 
appellants is not shown; but if it had not been, it was their duty to have shown 
it in their bill of exceptions to the refusal of their application; for, as has 
often been said, it is for the party alleging error to lay his finger upon it, 
or this court must otherwise presume the judgment of the court below to be correct.
  The judgment is affirmed.
                                        AFFIRMED.