
Stayton, Associate Justice.
The fall term of the district court of Fort Bend county is required by law to commence on the first Monday after the third Monday in September. This action was filed to that term, and the citation commanded the officer to summon the defendant to appear on that Monday without giving the day of the month on which that would fall, and it commanded the officer “to have the writ then and there,” with an endorsement thereon showing how he had executed the writ. A motion was made to quash the citation on the ground that it was not “made returnable to the first day of the next term of the court after the issuance thereof/’ and because the particular day to which the writ was returnable was not specified. The writ required the defendant to be summoned to appear at the next regular term of the court, to be held at the court house in the town of Richmond, on the Monday fixed by law, was issued on August 31, and returned on September 8, and was in every respect sufficient. (Cave v. City of Houston, 65 Texas, 621.) The court began on September 27, and this cause was set for trial on October 7, and when called an application for continuance was filed, based on the absence of witnesses and depotions. The citation was served August 31, and not until Sep*137tember 24 were subpoenas issued for any witnesses, and the subpoenas were returned on the first day of the court, showing that the witness could not be found. Ho subpoena was afterwards issued, though the case was set for trial on October 7. The court held that sufficient diligence had not been shown. It was made to appear that one of the witnesses left the county temporarily on the twenty-second of September and that he had not returned. Interrogations were filed to take the depositions of witnesses living in other counties, but this was not done until September 27. The application showed that commissions issued on October 1, and that they had been placed in the hands of proper officers to take the depositions, but it did not state when the commissions were placed in the hands of officers to take the depositions. The court held that the diligence shown in this respect was not sufficient, and we can not say that the court erred in overruling the application for a continuance.
The trial commenced on October 7, and on that day the defendant had present as a witness one Riley, its master mechanic, who resided in Galveston county. This witness, on the evening of the seventh of October, went to his home in Galveston, on account of the sickness of some member of his family, expecting to return and testify in the case on the next day, but was unable to do so. Ho steps had been taken to take the deposition of the witness. On the eighth of October an application was made to continue the •case on account of the absence of this witness, and it was overruled, and we think there was no error in this.
The law provides how the evidence of witnesses not resident ■of the county in which the trial is to take place may be obtained, and one who fails to avail himself of the means which the law furnishes to produce evidence can not be said to have used due diligence. The charge given, at request of the plaintiff, was not subject to the objections now made to it; and, taken in connection with the charges given at the request of the defendant, fairly submitted the case to the jury.
The evidence is conflicting as to the origin of the fire which burned the grass in the plaintiff’s pasture, but the only witness who prqfessed to know how it originated leaves no doubt upon that question.
It was for the jury to pass upon the credibility of the witnesses and to determine the weight to be given to their testimony; and, the evidence offered by the plaintiff being sufficient to show that the injury was caused by the escape of fire from the *138defendant’s train, and that its roadway was in such condition as to cause the fire to spread and extend to the plaintiff’s land, we can not reverse the judgment on this ground.
This action was brought by the appellee as the survivor of the community of herself and her deceased husband, qualified under the statute to administer the community estate, to recover for an injury done to that estate. The entire "pasture, a part of which was burned over, embraced over thirty-seven hundred acres. The estate and one Pentecost together owned several tracts of land, and one of these tracts, containing over two thousand acres, was in the pasture burned; in this tract Pentecost had an undivided interest of about two hundred and seventy-two acres. Pentecost was in possession of other lands in which the estate had an interest, and was using that, as was the appellee using the tract embraced in the pasture.
Prior to the death of the husband of appellee, he and Pentecost had an agreement for the partition of the land which they held as tenants in common, under which the former was to have the interest of Pentecost in the lands in the pasture, and the latter was to have lands outside. After the death of the husband of appellee the partition was effected in accordance with the prior understanding.
The fire having passed over the tract in which Pentecost formerly had an undivided interest of about two hundred and seventy-two acres, it was urged in the district court that the appellee ought not to be permitted to recover for injury done to so much of the land. There was no foundation for this objection. The fact that the partition with Pentecost may have been made after the death of the husband of the appellee, does not affect the character of title to the land. Whether the actual partition was made before or after the death of the husband of appellee, the interest in any land embraced in the partition and acquired for pasturing would be community property. If the partition had not been made until after the destruction of the grass by fire, under the facts shown, the rights of the parties would be the same.
If by agreement between tenants in common one is permitted to have the exclusive use and possession of a part of the land which they togethér own, while the other has such use and possession of other lands so owned, then either may recover for any injury done to that which he has right exclusively to use or possess.
*139Opinion delivered March 11, 1887.
No objection was made or is now urged as to the admissibility of the evidence introduced to show the extent of the injury or amount of damages, and we are of opinion that it was sufficient to sustain the verdict.
We do not see that the remarks of counsel for appellee, in reply to the argument of counsel for the appellant, could have influenced the verdict.
What has been said renders it unnecessary to consider seriatim the assignments of error further.
There is no error in the judgment, and it will be affirmed.

Affirmed,

