People ex rel. Green v. De La Guearra

By the Court,

Crockett, J.: This is an application by the plaintiff for a peremptory mandate to be directed to the Judge of the First Judicial District, in and for the County of Santa Barbara, to compel him to proceed to hear and determine the action of Green v. Swift, alleged to be pending in that Court. The following facts are disclosed by the petition and answer, viz: That Green commenced an action against Swift, in the usual form, in the District Court for Santa Barbara County, to recover the possession of a parcel of land in that county, in which action issue was regularly joined; that another action of a similar character and to recover the possession of the same land, was commenced by Green against Swift, and was pending at the same time in the District Court of the Fourth Judicial District in and for the City and County of San Francisco ; that when the action pending in Santa Barbara County was called for trial an application was made in behalf of the plaintiff to continue the cause for the term, on an affidavit of the attorney of record for the plaintiff, to the effect that he resided at San Francisco, and was so occupied with other professional engagements as to prevent his attendance on the Court at Santa Barbara, the application being made by another attorney, who appeared for that purpose only at the request of the attorney of record; that the application to [227]continue the cause for the term was denied; but the Court postponed the trial until a later day in the term, for the purpose of affording an opportunity to the plaintiff’s attorney to be present at the trial; that on the appointed day the cause was again called for trial, and the plaintiff’s attorney being still absent, the attorney who had represented him on the former motion moved to dismiss the action; but the Court denied the motion, except on the condition that the plaintiff paid the costs on or before a subsequent hour of the same day; that the costs were not paid, and the cause was tried before a jury, in the absence of the plaintiff’s attorney; and no witnesses or proofs being introduced for the plaintiff, a verdict and judgment were rendered for the defendant; that the judgment erroneously recited that the plaintiff had appeared and introduced evidence at the trial; that the action which was pending in the Fourth District Court was subsequently transferred to Santa Barbara County for trial; that one of the defenses set up in the action as a bar was the former recovery by the defendant in the other action; that, for the purpose of avoiding this bar, the plaintiff filed a supplemental complaint setting forth that the judgment in the former action falsely recited that the plaintiff' had appeared and introduced evidence in support of his cause of action; that the plaintiff and his attorney of record were ignorant of these false recitals in the judgment until long after the term had elapsed and until it was too late to correct the same on motion or by a statement on appeal; that the attorney of record was also ignorant that the Court had refused to allow the cause to be dismissed, and supposed it, had been dismissed until after it was too late to obtain relief in either of the methods above indicated; that the Court first proceeded to hear and determine the equitable matter set up in the supplemental complaint, and on the trial found as facts that the plaintiff and his attorney of record were ignorant of the false recitals in the judgment, and of the