Lodtman v. Schluter

Foote, C. This action was dismissed by the court below for want of prosecution upon the motion of two of the defendants, Barnett and Burt.

Thereafter, upon motion made by the plaintiffs, and due notice thereof, the court made and entered an order setting aside and vacating its judgment of dismissal, upon the condition attached, that the plaintiffs should pay to the defendants the sum of eighty dollars. From the last-mentioned order this appeal is .prosecuted.

The affidavit of merits made by the principal attorney for the plaintiffs is as follows:—

[95]“3. M. Lesser, being duly sworn, says: —

“ That he is- one of the attorneys for plaintiffs, and has had full, sole, complete, and absolute charge of said action, and the only attorney of plaintiffs who has or ever had any knowledge of the action.

“ That about the seventh day of June, 1884, the affiant ' received a letter from W. L. Dudley, announcing to him that the trial of said cause was set for June 16, 1884, which said letter is hereto attached and made a part hereof.

“ ‘ Stockton, Cal., June 5, 1884.

“‘3. M. Lesser, Esq., Santa Cruz, — Dear Sir: Am in receipt yours 2d inst. Last Monday, when the calendar was called in Judge Hewel’s court, our Lodtman-Schluter case was set for trial, at my request, Monday, 16th inst. My clients are insisting upon a trial, and will not consent to any further delay. If they would consent to postponement, I should have no objection to comply w'ith your request, but they will not, and therefore I hope you may arrange your engagements so as to try «the case on the 16th. Truly yours,

‘“W. L. Dudley.’

“ That affiant is a resident of Santa Cruz County, and in active practice in said county; that the first Monday in June, 1884, was the day on which causes were set for trial in the Superior Court of Santa Cruz County for the month of June, and on said day a number of cases in which affiant was attorney were set for trial and hearing; that among the cases so set for trial was the case of Ashley v. Ferguson, on which the argument was set for hearing on June 17, 1884; that in said cause of Ashley v. Ferguson a large amount of money was involved, and the same presented very intricate questions of law, and the same was under the sole control and charge of affiant; that in such action was also involved the ownership of some thirty head of horses, which were then and had been for some time in the possession of