Stephens v. Aviation Research & Development Publishing Corp.

BISHOP, J. pro tem.

*

The defendant appeals from the judgment which awarded plaintiff $12,228.53, and adjudicated that defendant take “nothing by reason of its counterclaim.” Defendant made a motion for a new trial which was denied. We are not persuaded that a new trial should have been granted, and are affirming the judgment.

The pretrial conference order, filed November 1, 1961, set the case for trial on January 29, 1962. On that day it was continued to June 6, 1962, “on motion of defendant.” Another continuance was made, this time to August 23 “on the court’s own motion.” Again, on the motion of the defendant, there was a continuance to October 25. On that date, “ on court’s own motion, due to congested calendar” a further continuance designating January 21, 1963, was ordered. The plaintiff took his turn and on his motions two further postponements were made, to April 1, 1963, then to June 25. On the date just given the minute entry appears: “ On motion of defendant cause ordered continued to October 14, 1963, at 9 a.m. No further continuances.”

Not discouraged by those concluding words, on October 14 the defendant moved for a further continuance. In support of its motion it filed a declaration by a member of its firm of counsel, dated March 11, in which he recites that two weeks earlier he had written the defendant’s president requesting certain documents required for the trial. Instead of the documents he received a phone call from the president to the effect that the defendant had become insolvent and without funds to send either him or another witness out to California to be witnesses. The declaration included further hearsay statements from a New York attorney who, in a letter dated October 10, advised local counsel that the New York attorney had been employed to prepare and was busy preparing bankruptcy papers for the defendant.

Defendant’s motion for a continuance of at least 30 days was denied, but “due to congested calendar,” the matter was continued to the next day. Then it went to trial, which was not concluded until October 16. On November 12 findings of fact and conclusions of law and the judgment appealed from were signed and filed.

[351]

Up to this point, the only ground for a reversal of the judgment to which appellant points is the refusal of the court to grant it another last minute continuance. What of section 4 ½ of article VI, and its command: “No judgment shall be set aside, or new trial granted, in any case . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”? There was a trial of this action, participated in by defendant’s counsel. We have no record reporting a word of the evidence taken. Obviously we cannot say that we are of the opinion, after an examination of the evidence, that the defendant was prejudiced by the denial of a further continuance.