Proulx v. De Moti

WHITE, P. J.

Plaintiffs commenced this action against defendant for damages for personal injuries allegedly sustained in an automobile accident. The cause was set for trial on January 3, 1949, and was thereafter continued or reset for trial some seven times, finally coming on for trial on April 17, 1950, at 9:15 a.m., in Department 1 of the superior court. Upon this last-mentioned occasion defendant’s attorney was present, but plaintiffs ’ attorney was absent. After the calling of the calendar was completed, defendant’s attorney «directed

[267]

the attention of the court to the fact that this case was not called, and the court stated that the matter had been continued to 1:4o p.m. of the same day. When, about 1:30 p.m., plaintiffs’ attorney appeared in court, he noticed that his clients were not present. The attorney then communicated with his secretary, and after inquiry on her part was informed that the clients had returned to their home in Van Nuys, some distance from the court room. Plaintiffs being unprepared to proceed with the trial, the court granted defendant’s motion for dismissal.

Subsequently plaintiffs moved the court, pursuant to section 473 of the Code of Civil Procedure, to vacate and set aside the judgment of dismissal upon the ground that such judgment was the result of inadvertence and excusable neglect. From the order granting such motion, defendant Louise Catherine De Moti (the only defendant who appeared in the action) prosecutes this appeal.

Appellant recognizes the well established policy of the law to have legal controversies tried upon their merits, and that unless it can be determined as a matter of law that the trial court abused its discretion in setting aside a judgment such as the one here under consideration, the court on appeal will not reverse the trial court’s action. Appellant, however, urges that in the instant case the affidavit of respondents’ attorney in support of the motion was insufficient; that the motion was improperly granted because it was not supported by points and authorities as required by the rules of the superior court; and that the plaintiffs’ proper remedy was by appeal from the judgment.

The supporting affidavit of plaintiffs’ attorney shows that the cause had been continued on two occasions due to substitution of attorneys for defendant and illness of the latter’s attorney, and that “the matter was put over a few times more because of the crowded condition of the calendar.” Finally, when the cause was set for trial on April 17, 1950, at 9 :15 a.m., it is averred that plaintiffs’ counsel “was engaged in a criminal jury trial in Division 5 which started Thursday, April 13th and continued until noon of Monday, April 17, 1950; that affiant was occupied in trial on Friday, April 14, 1950, until 5 p.m. on the trial of a jury case and when affiant then tried to call Attorney Brown to advise him of the situation, the latter’s office did not respond to the call.