Palomar Mortgage Co. v. Lister

GRIFFIN, P. J.

The plaintiff-appellant in this action seeks a declaratory relief judgment and damages for breach of contract. The action originally involved three defendants other than the respondents before this court, but a summary judgment was granted in their favor. The action came to trial on August 2, 1961. A jury had theretofore been requested and was present in court. At the time set for trial, Mr. Gordon von Kalinowski appeared on behalf of the attorneys for the plaintiff and moved for a continuance of the trial. He submitted in support of the motion an affidavit of Mr. Robert S. Forsyth, one of plaintiff’s attorneys, which was dated July 31, 1961 and which stated in substance that affiant was the only member of his firm who was acquainted with the action or would be able to try it. He stated that:

“On Wednesday, the second day of August, 1961, the date upon which the within action is set for trial, affiant is engaged in Department 100 of the Superior Court for the County of Los Angeles” in a criminal ease. Affiant also averred that he had other dates for trial in criminal cases and requested a continuance until August 14 or thereafter.

It appeared at the hearing that Mr. von Kalinowski had been requested to make an appearance on behalf of plaintiff’s counsel; that he had made contact with counsel for the defendants on August 1 and had been informed by counsel for defendants that any application for continuance would be strenuously resisted. When the matter was presented to the trial court, counsel for defendant stated that he was resisting the motion.

During the course of the discussion between counsel and the court, it was indicated that the court looked with disfavor upon the application and that the court was inclined to deny the motion. During the proceedings, Mr. von Kalinowski made it clear to the court that he knew nothing whatever of the case and was merely appearing at the request of counsel to apply for the continuance. He eventually requested the court to grant a continuance until the following day, offering, on behalf of plaintiff’s counsel, to .pay the jury fees and such costs as the court would direct, and asking that he be given an hour in which to make contact with the office of

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plaintiff’s counsel in Los Angeles to ascertain for sure that counsel would be present the following morning to proceed with the trial. At this stage of the proceeding, counsel for the defendants stated to the court that if a continuance was to be for no longer than a day, the defendants would consent thereto. The court refused the one-hour delay, denied the application for continuance and directed counsel for defendants to proceed with the trial. Members of the regular jury panel were present; the first 12 jurors were called into the jury box and were sworn as jurors without examination; defendants presented evidence in support of their position and a verdict in favor of defendants was rendered, Mr. von Kalinowsld was excused from attendance upon the denial of the motion for continuance.