Swayne & Hoyt v. Wells-Russell & Co.

SHAW, J.

The defendant has appealed from an order denying its motion for a new trial. The only point presented by the record is that the court below erred in denying the application of the defendant to postpone the trial from September 15 to September 30, 1911. The case depends upon the sufficiency of the affidavit filed in support of the application for a continuance, taken in connection with the issues and previous proceedings in the case.

The plaintiff sued the defendant for money had and received, alleging that plaintiff operated a steamer carrying passengers to and from San Francisco and Arena Cove, Mendocino County, California; that the defendant operated a public wharf at Arena Cove and also, in virtue of an agreement between plaintiff and defendant, the latter acted as ticket agent for the plaintiff to sell tickets for passage on its steamer; that from September 29, 1908, to November 30, 1909, defendant sold tickets for plaintiff for sums aggregat

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ing $2,833.00, of which it paid to the plaintiff $2,301.95, and for which.it was entitled to commissions of $141.65, leaving due to the plaintiff and unpaid $389.40. The defendant admitted the receipt and payment of said sums of money and that it was entitled to the commissions as stated, but it alleged as a defense that in addition to selling tickets it had performed various other services for the plaintiff at its request, which were of the reasonable value of $389.40, and that it had from time to time rendered monthly accounts of the sales of tickets and of the services rendered, showing that nothing was due to plaintiff, which accounts were acquiesced in by the plaintiff, so that the same became an account stated.

After the ease was at issue and had been placed on the calendar to be set for trial, difficulty was encountered in finding a time when it could be tried by the regular judges of San Francisco County, whereupon it was transferred to an “extra session,” held by a judge of another county. On September 12, 1911, the counsel for plaintiff and defendant agreed that the case should be set down for trial on September 14, 1911, but counsel for defendant agreed thereto upon the express condition that the trial should not proceed at that time if defendant was unable to procure the attendance of its wharfinger at Arena Cove as a witness. The next day, ascertaining that the attendance of said witness could not be procured, defendant’s counsel informed the plaintiff’s counsel of that fact, and they thereupon agreed that the case might be continued until a later date, but did not obtain the approval of the court to that agreement. On September 14, at the time set for the trial, defendant’s counsel appeared, but counsel for the plaintiff was absent. Thereupon defendant’s counsel stated the foregoing circumstances and requested a continuance, upon which the court continued, the trial until 10 o’clock of September 15, 1911. On September 15 counsel for both parties appeared and joined in a request for a continuance. The court denied the same and set the cause for trial at 1:30 p. M. of that day, and announced that the cause would not be continued, except upon a “legal showing.” At the time fixed, the defendant’s counsel presented the affidavit upon which the continuance was asked. After stating the foregoing facts the affidavit proceeded to say that by reason of the distance which must be traveled and the means of travel from San Francisco to Arena Cove, and