Gonzalez v. Gonzalez

ASHBURN, J.

Defendant appeals from an interlocutory judgment of divorce granted to his wife. The disposition of two parcels of real property is the major alleged grievance of appellant. They stood of record in the names of both spouses as joint tenants and were impliedly found to be community property (written findings were waived), and were distributed as such, each party being awarded one parcel. Appellant says that if he had not failed to appear at the trial following a continuance from Friday afternoon to Monday morning and had his attorney been granted a continuance from Monday morning to the afternoon of that day, his testimony (if given) would have produced a different result and therefore there was grievious error in denying that continuance. He raised the point upon motion for new trial, apparently under the heading of accident and surprise which ordinary prudence could not have guarded against.

The trial commenced on the afternoon of Friday, August 3, 1956, at which time defendant was present. The wife then testified that the two parcels of real estate were purchased from earnings of both spouses and, though the deeds ran to them as joint tenants, there was an express oral agreement in each instance that same were and should be community property. At the close of the afternoon the judge announced that he would put the case over to 10:45 o’clock on Monday morning. Defendant understands English well and uses it

[105]

fluently. There was a court interpreter present who had assisted the wife when testifying. When the judge announced the adjournment the interpreter translated it into Spanish, which is apparently the language defendant claims to know.

Though the case had been continued to 10:45 on Monday morning it was not called until 11:40. At that time defendant’s attorney told the court: “Your Honor please, my client, Mr. Gonzalez, although I told him to be here at ten-thirty this morning apparently something has happened. He has not called and he is not here. I called my office and they called his place of business and he is not there and they did not expect him until afternoon; therefore, I ask the matter be continued over to this afternoon until I can find out about him. The Court : The motion for a continuance will be denied. We will continue on as far as we can.” After the evidence of plaintiff and her son had been completed and plaintiff had rested, defendant’s counsel addressed the court as follows: “Your Honor please, my client is not here. I don’t know what happened to him. The Court : Do you want a continuance to two o’clock? Mr. Gray-: I will have to, your Honor please. Mr. Marcus : Your Honor, I have been ordered to appear at two o’clock in another matter, and he has not seen fit to appear here this morning. . . . The Court : I don’t know whether it will do any good to go over to two o’clock under the circumstances. Mr. Gray: I don’t know either. I don’t know whether he will be here, but I cannot enter into any stipulation that the matter may be decided on the evidence before the Court. The Court : The record shows your position.” The court then announced its ruling, said that the “community property of the parties is awarded as follows” and made division of real estate as above indicated.