Cahill v. Verdier

STURTEVANT, J.

The plaintiffs commenced an action against the defendant for the reasonable value of labor and materials furnished the defendant at his special instance and request. The plaintiffs recovered a judgment in the trial court, and the defendant has appealed under section 953a of the Code of Civil Procedure.

The defendant complains because the trial was had in the absence of the defendant and of defendant’s counsel. In this behalf it becomes pertinent to note that on Febru

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ary 9, 1921, the plaintiffs’ attorney served and filed a notice of motion to set the case for trial. In that notice it was stated that the motion would be made February 17, 1921. On the date last mentioned, Kenneth M. Greene, Esq., representing William A. Kelly, Esq., attorney for defendant, appeared, and J. E. McCurdy, Esq., appeared, representing the plaintiffs, and on motion of counsel the hearing of the motion to set was continued to the twenty-fourth day of February, 1921. On the latter date, no one appearing for the defendant, the case was set for trial at 10 o’clock A. M., February 28, 1921. On the same date the trial court made an order that the time for serving and filing the notice of the date of the trial be shortened to two days. On the same day the attorney for the plaintiffs served on the attorney for the defendant a formal written notice of the time and place of trial.

Under the foregoing circumstances a trial was had before the court sitting without a jury, the plaintiffs introduced their proof, and, in the absence of the defendant, took a judgment as prayed for.

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The appellant contends that the trial was had, therefore, in violation of the provisions of section 594 of the Code of Civil Procedure. Replying to this contention, the respondents place much stress upon the record as showing that on the eighth day of February, 1921, they gave a written notice of intention to move to set the cause for trial; that the hearing of the notice came up on the seventeenth day of February, 1921, in. the presence of himself and the representative of the attorney for the defendant; that the further hearing of the motion to set was continued until the twenty-fourth day of February, 1921. These matters concerning “notice of intention to set” are wholly without the provisions of section 594 of the Code of Civil Procedure. They neither sustain nor violate the calls of that statute.