Hurley v. Kazantzis

DOOLING, J.

This is an appeal by defendant from plaintiff’s judgment. The action went to trial in the absence of defendant. On the morning of the date set for trial, November 12, 1946, counsel made a motion for continuance on the

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ground of the unavoidable absence of the defendant. Notice of time of trial" had béen served on counsel for defendant on October 10, 1946. Counsel’s affidavit showed that he had promptly notified defendant that the case was set for trial and that on October 15 he had received a telegram from defendant advising him that he would not be able to attend the trial on November 12, and asking him' to secure a continuance. No showing of facts was made that defendant’s presence at the trial was necessary, nor any showing excusing the failure to take defendant’s deposition in the period of over four weeks between October 15 and November 12, or of any facts expected to be proved by defendant. Neither was there any showing why the making of the motion for continuance was delayed until the date set for trial and not more promptly made. The ease had previously been set for trial on May 20, 1946, and continued by agreement of counsel to accommodate defendant who was at that time also outside the state.

The granting or denial of a motion for continuance on the ground of the unavoidable absence of a party rests in the sound discretion of the court. “While the circumstance that the witness who is unable to attend is, at the same time, one of the parties should no doubt be regarded as strengthening the showing in favor of a continuance, it has never been held in this court that the unavoidable absence- of a party necessarily compels the court to grant a continuance.

(Sheldon

v.

Landwehr,

159 Cal. 778, 781 [116 P. 44].) ‘It is for the trial court in all cases, except where otherwise expressly provided by statute, to determine whether or not the circumstances shown upon an application for a continuance are such as to make it proper that a continuance should be granted, and its conclusion thereon will not be disturbed unless there has been a plain abuse of discretion. ’

(Lynch