Ross v. Thirlwall

BARNARD, J.

This was an action originally brought by the plaintiffs as assignees of one W. C. Gilman to recover a balance of the purchase price of certain hogs, alleged to have been sold by Gilman to defendant. To the complaint the defendant filed an answer and counterclaim based upon allegations that the hogs sold him by Gilman were infected with cholera. He also filed a cross-complaint against the plaintiffs and the said Gilman, based upon damages, alleged to have been suffered, by reason of the communication of cholera from the hogs so purchased to other hogs already owned by him.

When the case was called for trial on April 30, 1926, at 10 o’clock A. M., the defendant was not present. His attorney made a verbal statement to the court that the wife of said defendant was seriously ill at Chino, a distance of about thirty miles from the courtroom, and for that reason defendant and cross-complainant was unable to be present. Upon objection being made to a continuance, defendant’s attorney offered both to pay “terms” if such continuance was granted, and to take the deposition in court of a witness then present, who had come some distance. The trial judge suggested that some proof be produced to show that it was impossible for defendant to be present, and took an adjournment until 2 o’clock of the same day.

At 2 o’clock, the motion for a continuance was renewed and the only proof offered was the affidavit of defendant’s attorney, to the effect that defendant was unable to be present for the reason that his wife was dangerously ill, and that her condition necessitated defendant’s remaining with his wife and children; that this condition had existed for several days before and would exist for several days in the future; that affiant had been informed by the woman’s physician that it would be some time before he could determine whether or not she was out of danger. The motion for a continuance was denied and the attorney for defendant announced that he would not participate further in the pro

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ceedings and walked from the courtroom. The trial proceeded and resulted in a judgment against the defendant for $491, interest and costs, and a denial of any relief under his cross-complaint.

The defendant later moved to vacate the judgment and also moved for a new trial, both of these motions being based on the ground that the trial court abused its discretion in refusing to grant a continuance. In support of these motions, a number of affidavits were filed. The first was the affidavit of defendant’s attorney, to1 the effect that the case was set for April 30, 1926, at 10 o’clock, and that on the morning of that day, the defendant called affiant on the telephone and informed him of the dangerous illness of his wife, of his inability to get help, and that it was impossible for him to be present; that he had stated these facts to the court and the judge had asked him to produce proof thereof; that affiant had furnished proof in the form of his own affidavit, but that the court had proceeded with the trial and affiant had withdrawn from the courtroom; and that defendant had a meritorious defense and cause of action on his cross-complaint. The next affidavit, that of defendant himself, set forth that he had a meritorious defense; that his attorney had sent him a letter on October 26, 1925, notifying him of the time and place of trial, but that he never received such notice; that about 8 o’clock on the morning of April 30, 1926, he received a telephone communication from his counsel, asking him whether or not he intended to come to the trial; that he informed his attorney that he had received no notice and was unable to come because of the dangerous illness of his wife; that he was informed by his physician that the condition of his wife was serious; that he was unable to get assistance in that short period of time, and that he was not in a physical or mental condition to take part in the trial. There was also filed the affidavit of the attending physician, corroborating defendant’s statement as to the condition of his wife; and in addition there were several affidavits made by other parties, setting forth certain facts going to the merits of the case.