Neil v. Gane

TAPPAAN, J.,

pro

tem.

This appeal is from a judgment had upon a promissory note signed by appellant only. The co-defendant was appellant’s husband, and was made a party solely for that reason.

The complaint in the action was filed on October 15, 1924, and defendants duly answered November 15, 1924. The case came on for trial February 26, 1929, and plaintiff’s counsel made a motion for a continuance, so that he could file an affidavit showing that a deposition had been taken in the action and had disappeared from the files. On February 27, 1929, the affidavit having been filed, the trial was continued to March 27, 1929, to enable plaintiff to take a new deposition, defendants’ attorneys at this time stating that they

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would submit cross-interrogatories. When the case was called on March 27, .1929, it appeared that no cross-interrogatories had been, filed, and the trial was continued to April 25, 1929. On both April 25, 1929, and May 28, 1929, the trial was continued because of defendants’ failure to stipulate as to the taking of the deposition or to submit cross-interrogatories. On February 26 and 27 and again on May 28, 1929, defendants had moved to dismiss the action on account of lack of prosecution. These motions were denied. The cause came on for trial on July 1, 1929, and evidence was received on behalf of both plaintiff and defendants. Plaintiff’s counsel offered the deposition of plaintiff, taken before a notary public in the state of Michigan, to which defendants objected, and their objection was sustained. Plaintiff’s counsel moved the court for a continuance to correct the deposition, which the court granted. Defendants renewed their motion to dismiss, which was denied. On October 7, 1929, the cause again came before the court, and the deposition, failing to have attached the authenticating certificate of the clerk of the county court where the deposition was taken, was again rejected, and counsel permitted to withdraw the deposition to secure the lacking certificate, and the trial of the cause continued. On December 6, 1929, the cause was heard, the deposition admitted in evidence, the matter duly submitted, findings filed and judgment entered. At the hearing on December 6, 1929, defendants moved to dismiss the action on the ground that the cause had not been brought to trial within five years after answer filed, and that no written stipulation extending the time for said action to be brought to trial had been made, as provided by section 583 of the Code of Civil Procedure. This motion was denied.