Berger v. Mantle

WOOD, J.

Plaintiff appeals from a judgment of dismissal entered upon the denial of her motion for a continuance of the trial. In her complaint plaintiff alleged that

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Michael A. Berger had for more than thirty-five years rendered services in and about the business and affairs of Lee Mantle, his uncle; that Mantle had promised to pay for these services by providing a legacy for Berger in his will and in the event that Mantle should survive Berger the legacy was to be left for Berger’s family; that Mantle died without making said legacy; that the services rendered were of the value of $126,000; that plaintiff is one of the heirs of Michael A. Berger and the assignee of the other heirs of Michael A. Berger; that a claim had been presented to the executrix of the estate of Lee Mantle and that the claim had been disallowed. Michael A. Berger predeceased Lee Mantle. In the inventory of the estate of Berger no mention is made of the claim against the estate of Mantle.

The case was called for trial at 9 :30 A. M. on July 16, 1936. At that time William B. Spivak filed an affidavit in which he set forth that he had been substituted as attorney in place of Peter J. Youngdahl, the substitution having been signed on July 15, 1936, and filed on July 16, 1936. The affidavit further set forth that the affiant “has been retained only several days ago and all of the parties who will testify as witnesses for plaintiff are either residents of the State of Montana or the State of Wyoming or the District of Columbia; that there are at least six to ten competent witnesses who can and will testify in this case and all of whom must be brought down to the city of Los Angeles from either Butte, Montana, Helena, Montana, or other northern points; that affiant has not had ample or any opportunity to communicate with these witnesses and that he will probably have to return to Butte, Montana, to arrange for their attendance at trial. That in addition thereto, there is a voluminous amount of documentary proof, all relevant and pertinent to plaintiff’s cause of action, which affiant has been given to understand is available for- use at the trial; that affiant has only several of these documents in his possession and that a large box of letters 'from the defendant to the plaintiff herein is in transit to affiant’s office”.

One of the attorneys for defendant filed a counter affidavit in which he asserted lack of diligence on the part of plaintiff, claiming that the substitution of’ attorneys was made for the purpose of delay. From this affidavit it appears that the first publication of notice to creditors in the