Derkmann v. Von Blumenthal

HOUSER, J.

Plaintiff recovered judgment in the court below, and defendant appeals therefrom on the ground of irregularity' in the proceedings and error of the court in refusing to grant a continuance of the trial.

From the record (which apparently is incomplete), the facts appear to be that after plaintiff had rested her case defendant’s attorney moved for a continuance of the hearing of the action on the ground, as stated by defendant’s attorney, “Now it may be out of order—I trust Your Honor won’t think so—but I rise and ask you to continue this case until I can see Madam Yon Blumenthal and ask her the facts and find out what is right with reference to her cause. These people are armed here with their witnesses. Mine is now sick in bed. My client can’t come here, and I wish right now to ask a continuance of this case until I can at least find out what the facts are.” '

On the consideration of defendant’s motion, the affidavit of a physician as to the health of defendant was introduced in evidence and the physician was later called as a witness in the matter. His testimony was to the effect that defendant was too ill to attend court. Another physician, appointed by the court for the purpose of making a physical examination of defendant, testified “that the defendant was not suffering from any illness, either physically or mentally, that would in any way prevent her from court and participate in the trial of said action.” Another witness testified to having seen defendant on a street in the city of Pasadena within four days next preceding the date when the motion for a continuance was heard. On the evidence the court denied defendant’s said motion.

[608]

In the case of

Sheldon

v.

Landwehr,

159 Cal. 778 [116 Pac. 44], the rules governing the proper disposition of a motion for continuance of a trial' are set forth as follows:

“An application for continuance on the ground of the absence of a witness is addressed to the sound discretion of the trial court, and an order denying the application will not be deemed ground for reversal unless it is clear to the appellate court that the court below has abused its discretion. (Mu