Appellant urges in his motion for rehearing that in view of the evidence the court below should have granted a new trial to give him an opportunity to secure the witness Garrett, conceding that diligence was wanting in the effort to have him present when the case was tried. The application for continuance is totally lacking upon its face in any showing of diligence. The state resisted the application on that ground. Upon a hearing before the court regarding the matter *Page 592 certain facts were agreed to which are embraced in the bill of exception. From the bill we glean the following information. In November, 1925, in a disbarment proceeding against appellant, Garrett testified with reference to the matters set out in appellant's application for continuance; neither appellant nor his attorneys had ever seen him since that time nor had any information as to his whereabouts further than that given in the application for process. On March 26, 1926, an order was entered setting the present case for trial on April 7. On March 30 appellant filed application with the clerk for process to issue for witnesses, among whom was Garrett, whose avocation and address was given as "Circulation Distributor, North Fort Worth." When the case was called for trial on the 7th day of April, Garrett was not present, the sheriff's return showing that he could not be found in Tarrant County. Upon application of appellant the trial was postponed, not because of Garrett's absence, but on account of the illness of appellant's wife and a child of appellant's attorney. On the 20th day of May said cause was again set down for trial on June 2. Appellant's attorney was notified by the clerk who inquired if any process was desired. The attorney requested process to issue on the old application. The clerk requested additional information about Garrett. Appellant's attorney advised that he had none but would report if he secured any. On May 26 process was re-issued for Garrett with same notation as originally. As soon as that process was placed in the deputy sheriff's hands on the day it was issued he also telephoned appellant's attorney asking additional information about Garrett's whereabouts. Appellant's attorney reported to that officer the same as he had to the clerk with the same promise. No such information was ever conveyed either to the clerk or the sheriff's department. When the case was called for trial on June 2 appellant and his attorneys were present and knew that Garrett was absent. Owing to the absence of one of the state's witnesses the trial was postponed to the 10th day of June. During all that time if any effort was made by appellant or his attorneys to locate Garrett the record fails to show it. It is fair to assume either that they could not secure additional information as to his whereabouts or made no effort to do so. Viewing the whole case it does not occur to us that the trial judge abused his discretion in declining to grant a new trial on account of the absence of the witness. The record indicates that there was little probability of securing the witness if the continuance had been granted, or that his presence would have changed the result of the trial. It does not appeal to us as presenting *Page 593 one of the exceptional cases where this court has occasionally held that a new trial should have been granted, although the continuance was properly denied for want of sufficient diligence.
Appellant's motion for rehearing is overruled.
Overruled.