Lorraine v. McComb

PRESTON, J.

By this application for writ of mandate petitioners seek to ascertain the validity of the recent amendment to section 595 of the Code of Civil Procedure (Stats. 1933, p. 1873), which, so far as here material, provides: “In all cases, the court shall postpone a trial, or the hearing of any motion or demurrer, for a period not to exceed thirty days, when all attorneys of record of parties who have appeared in the action agree in writing to such postponement. ’ ’

[755]

A certain action entitled

Sarah R. Lorraine, Plaintiff,

v.

I. B. Doyle, Defendant,

No. 347-524, begun January 18, 1933, was at issue in the Superior Court of the County of Los Angeles, prior to August 24, 1933, on which date the cause was regularly set for trial for October 5, 1933. Later the trial was postponed to October 9, 1933. On the last-mentioned date, instead of going to trial, the plaintiff and defendant, through their respective counsel, agreed in writing to postpone the trial date to October 24, 1933, or other subsequent date within the thirty-day period from October 9th. However, his Honor, Marshall P. "McComb, the judge in charge of the trial calendar, • refused to allow this requested postponement, and as counsel did not proceed with the trial, the cause was ordered to the list of off calendar cases, to be again restored in the original manner required by the rules of practice of the court. The parties, acting jointly, by this proceeding seek to compel the reinstatement of the cause to its previous status on the calendar.

The essence of the grievance of petitioners is that under said practice a trial court, by insisting upon trial on a day certain, over protest of both litigants, acts so arbitrarily as to violate the legal rights of the parties. However, it requires no effort to see that there are two sides to this controversy. The orderly and effective dispatch of legal business is the controlling factor with the court. The rights and conveniences of the parties to each particular cause present the other side. It is regrettable that a clash may at times occur between these forces. But the exercise of controlling discretion in such a situation must be exerted by the trial court, subject to revision by the higher courts if such discretion is abused. Ordinarily it should be possible to accommodate the parties in cases where they mutually agree to a postponement of the trial date, but in case this becomes impracticable, the judicial control reposed in the court by the Constitution must prevail.