Gates v. McPherson

[474]

CONREY, P. J.

In this action to recover a sum claimed as due under a contract, the cause came on for trial on June 24, 1932, and resulted in findings regularly made by the court, and judgment for the plaintiff. The defendant appeals from the judgment. On this appeal, as shown by the brief of appellant, the only assignment of error is that on said twenty-fourth day of June the court erred “in refusing to continue the trial of the action when said court denied the application of counsel for appellant to present a motion for said continuance”; for which reason it is contended the court erred in rendering the judgment from which the appeal is taken.

Pursuant to notice given, respondent on November 28, 1932, presented to this court his motion to dismiss the appeal or affirm the judgment upon the ground that the appeal was taken for delay only, and that the questions upon which the decision of the cause depends are so unsubstantial as not to need further argument; and upon other grounds which we need not discuss. The motion having been submitted, appellant thereafter, in accordance with notice given, presented her motion to resubmit said motion of respondent, and in that connection that the court add to the record on appeal by directing that the clerk of the superior court make up and prepare a certified copy of the entries made on the register of actions in this case in the court below, and certified copies of the affidavits and the motion for a continuance noticed for the twenty-fourth day of June, 1932, in said action. In support of her motion appellant has attached to her notice of motion filed herein copies of certain affidavits on file in the office of the clerk of the superior court, together with a copy of said register of actions in the case, with a certificate of the clerk of the superior court that said affidavits and register of actions entries are true and correct copies of said documents on file in said action. With one exception, said affidavits appear to have been filed on or before the twelfth day of June, 1932, but there is no certificate that they were used on said motion for continuance of the trial, or that they were introduced in evidence.

From the reporter’s transcript of the proceedings at the beginning of the trial on June 24, 1932, the following facts appear: Counsel for appellant asked leave of court “to present an application for continuance on the grounds of the