Nahas v. Nahhas

PEEK, J.

Defendants appeal from an adverse judgment and from the order of the court denying their motion, under section 473 of the Code of Civil Procedure, to vacate said judgment and for a new trial.

Defendants’ sole contention on appeal is that because of their alleged illness and inability to attend the trial, the court erred in denying their request for a continuance. As a part of the same contention they also urge that the court abused its discretion in denying their motion under section 473 of the

[441]

Code of Civil Procedure to vacate the judgment which was subsequently entered in favor of plaintiff.

The record before us shows that the case had been continued on numerous occasions, most of which were at the request of defendants, and had been at issue for more than two years. When it was finally called for hearing, defendants’ counsel orally moved for a continuance and for a substitution of attorneys. No affidavits or other matter were filed in support of such motion which was denied, and the case proceeded to trial in the absence of the defendants. No evidence was introduced in their behalf; however, they were represented by their then counsel of record. Following the entry of judgment, defendants were served with notice thereof, and approximately five months thereafter they filed their notice of motion to vacate the same under said section 473. At the hearing on that motion it appeared for the first time from the supporting affidavits which were signed by the defendant Joe Nahhas, a neighbor and two doctors, that on the day the case was heard both defendants were ill and unable to travel from their homes in San Francisco to Merced. The affidavit of the defendant Nahhas further averred that prior to the trial date he had sent to the court and to plaintiff’s attorney, as well as his then attorney of record, “statements and affidavits” setting forth the physical condition of both defendants, and that he thereafter telephoned Judge Sischo of the Merced County Superior Court, informing him of defendants’ condition and requesting a continuance, which request was denied. Additionally defendants averred that they are advised by their present counsel that they have a “valid and substantial defense” which is more particularly set forth in their answer on file in the original proceeding ; and that another action is pending between the same parties and involves the same subject matter as was here in issue.