Maynard v. Bullis

WILSON, J.

Plaintiff has appealed from an order dismissing the action and from an order denying his motion to reconsider and vacate the order of dismissal. He has purportedly appealed from an order denying his motion for a continuance of the trial.

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The complaint in the action was filed on February 11, 1949, and defendant’s answer thereto was filed on March 3. The case was set for trial on February 8, 1950. On October 26, 1949, the motion of plaintiff’s counsel for leave to withdraw from the ease, for the reason that differences had arisen between plaintiff and his counsel relative to the conduct and prosecution of the action, was granted and thereafter plaintiff appeared in propria persona. On December 2, 1949, notice of trial was served upon plaintiff. Shortly thereafter a representative of defendant’s counsel called at plaintiff’s residence and personally advised him of the date on which the ease had been set for trial and inquired whether he would be ready for trial at that time. Plaintiff’s answer was both profane and noncommittal. On February 7, 1950, the day immediately preceding the trial date, plaintiff’s present attorney, Mr. Goldman, telephoned to defendant’s counsel and requested a continuance of the trial in order that he might have time to make preparations therefor. His request was refused.

When the case was called for trial Mr. Goldman stated to the court that plaintiff was personally present in the courtroom and that he, Goldman, held a document executed by plaintiff appointing Goldman as plaintiff’s attorney but he did not intend to file it unless a continuance of the trial could be had. The court stated that no sufficient showing of grounds for continuance had been made and denied the same. Upon motion of defendant’s attorney an order was made dismissing the action.

Thereafter a substitution of Mr. Goldman as attorney of record for plaintiff was served and filed together with a notice of motion to reconsider and vacate the order of dismissal, pursuant to section 473 of the Code of Civil Procedure. The affidavits accompanying the notice of motion do not make

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any showing of mistake, inadvertence, surprise or excusable neglect. Plaintiff states in his affidavit that after the date on which his former counsel withdrew from the case he consulted numerous attorneys and law firms in regard to the case (in his brief he names eight different attorneys) “but that each of them refused to represent him therein.” The other affidavits do not purport to set forth any reason for a continuance of the trial or for the vacation of the order of dismissal.