Bashore v. Superior Court of Tulare Cty.

[2]

SLOSS, J.

Application for a writ of mandate requiring the superior court of Tulare County and the judge thereof to set a case for trial. An alternative writ having been granted, an answer was filed, and the proceeding is submitted upon the stipulation that the allegations of the answer are true.

It appears that an action, commenced by John Bashore, the petitioner herein, against B. B. Parker and Farmers’ Union and Milling Company, a corporation, was pending in the superior court of Tulare County, and was set for trial for the thirteenth day of February, 1906. A jury trial having been demanded by plaintiff, a venire of forty jurors was drawn for the trial of said cause, and twenty-nine of the jurors were in attendance on the day.set for the trial. On that day the plaintiff moved for a continuance, filing in support of his application an affidavit which was clearly insufficient, under section 595 of the Code of Civil Procedure, as a showing requiring the court to grant the requested postponement. The judge of said superior court expressed his dissatisfaction with the showing-made, and announced that he would order the trial of the case continued upon the conditions that plaintiff pay—1. Defendants’ costs incurred in preparing for the trial; 2. The expense of summoning the jury; and 3. The expense of one day’s fees for twelve jurors. The clerk thereupon entered in the minutes of the court an order reading in part as follows: “It is ordered that the trial ... be postponed indefinitely, upon the following conditions: that said plaintiff pay to the clerk of this court the sum of $28.10, being the sheriff’s fees for summoning the jury in this case; the sum of $24 for per diem of twelve jurymen, and the sum of $87.55, costs of defendants in preparing for trial. The plaintiff accepted said conditions, except as to the payment of the per diem of jurors, to which said plaintiff excepted.” The court did not require the actual payment of these sums before discharging the jury and ordering the continuance.

The answer of the respondents contains certain allegations (admitted by the petitioner to be true), which are relied on as showing an express acceptance by the petitioner of all the conditions imposed by the court. For the purposes of this opinion, we shall assume that the acceptance was merely as shown by the minute entry,—i. e. of all the items, except as to the payment of the per diem of jurors.