W. W. Bailey et al. v. The State, 26 Tex. Ct. App. 341

Willson, Judge. This appeal is from a judgment final upon a forfeited bail bond. When the cause was called for trial, the defendants made application for a continuance because of the absence of alleged material witnesses, which application was refused, and the defendants present this ruling of the court by proper bill of exception for revision. We find that the application for a continuance shows legal diligence to obtain the testimony of said witnesses, and in other respects is in strict compliance with the statute, it being a first application.

Such being the case, defendants were entitled to a continuance as a matter of right. The court had no discretion to refuse it. (3 Texas Ct. App., Civil Cases, sec. 302.) Defendants had pleaded matters of defense sufficient to base an application for continuance upon, and no exceptions were made to their pleadings upon the ground that the same were not verified by affidavit, nor upon any other ground. Because the court erred in overruling the defendants’ application for a continuance the judgment will be reversed and the cause remanded.

We have considered the other assignments of error made by appellants, and in our opinion none of them are maintainable. Reversed and remanded.