Corbin v. Howard

CURTIS, J.

This action was instituted to obtain a decree canceling a deed given to defendant Emma E. Howard by Frank II. Corbin, of whose estate the plaintiff is the residuary legatee. The ground of cancellation insisted on was that the grantor, to the grantee’s knowledge, was mentally incompetent to contract, and that the grantee fraudulently took advantage of the weak mind of the grantor. Frank II. Corbin, by deed executed the twenty-eighth day

[716]

of July, 1916, conveyed to Emma E. Howard certain real property situated in the county of Tulare. Thereafter the said Howard conveyed said land to defendant Lafayette G. Daily, and this defendant, with his wife, the defendant Effie Daily, conveyed the property to defendant A. G. Steuber, who in turn conveyed it to his wife, defendant Laura Steuber. The Steubcrs borrowed a thousand dollars from defendant Heilman Commercial Trust and Savings Bank, and gave a trust deed, covering said property, to the bank as security for said loan. The action was commenced in March, 1920. Summons was served upon all the defendants except the two Dailys, who it appears resided out of the state. Defendant Howard made default, and the defendants A. G. and Laura Steuber, and the Heilman Commercial Trust and Savings Bank answered, denying in one defense that any fraud had been practiced, and in another that they had any notice or knowledge of any fraud practiced upon the grantor, the said Frank H. Corbin. The answering defendants on September 20, 1920, had the ease set down for trial for December 22, 1920, and on September 28, 1920, duly-served notice of trial on plaintiff’s counsel. On the day of trial plaintiff appeared, but without his counsel of record. With the assistance, however, of W. W. Middlecoff, Esq., an attorney other than his attorney of record, he made a motion for continuance on the ground of the absence of his attorney of record, which motion was denied by the court. The trial then proceeded and resulted in a judgment in favor of the defendants who had answered in the case, and as to the defendants who had not answered the trial was continued.

Plaintiff appeals from the judgment and assigns as grounds for reversal the refusal of the court to grant his motion for a continuance. During the discussion before the court relative to plaintiff’s motion for a continuance, an affidavit in support thereof had been presented by the plaintiff; afterward, and before the court had ruled upon the motion for a continuance, the attorney who was then representing plaintiff withdrew this affidavit. . The court thereafter held that this attorney had no right to represent plaintiff on the hearing and he withdrew from the case. Plaintiff now contends that as this attorney was acting for him without any right, that he had no authority to withdraw the affidavit