Hawes v. Clark

California Supreme Court Jun 2, 1890 No. No. 13783Published

Before: Foote

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Holding. The court held that the trial court did not abuse its discretion in denying a continuance, that the defendant was bound by his counsel's oral waiver of a jury trial, and that the absence of findings on affirmative defenses is not reversible error absent evidence in the record supporting those defenses.

Issues

Whether the trial court abused its discretion in denying a continuance due to counsel's physical condition.
Whether a party may repudiate an oral waiver of a jury trial after receiving the benefit of the underlying stipulation.
Whether the failure to make findings on affirmative defenses constitutes reversible error when no evidence was introduced to support them.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The court saw the counsel and his condition at the time the application was made, and was a further witness to the fact that, notwithstanding his alleged disability, he immediately proceeded to participate and conduct the trial in person.”

“The record contains nothing to show that any evidence whatever was introduced on any such issues.”

Synopsis

New Trial — Continuance — Discretion.—It is not an abuse of discretion warranting a new trial for the court to refuse a continuance on the ground of the inflamed condition of the eyes of counsel, if, notwithstanding the alleged disability, the counsel immediately proceeds to participate in and conduct the trial in person.

Oral Waiver oe Jury Trial — Transfer of Cause — Estoppel. —When an oral waiver of a jury trial is made in open court by the defendant’s counsel, at the time when the case is set for trial, in consideration of an agreement with plaintiff’s counsel that the case shall be transferred to another department of the superior court and tried at a future time therein, the defendant is estopped from objecting at suieh future trial that his waiver was not entered upon the minutes of the court. After having received the benefit of the transfer, and secured the delay sought by him, he cannot be allowed to avoid the accompanying burden of a trial before the court without a jury.

Findings — Want of Finding upon Affirmative Defense. — When the findings support the judgment, and contain nothing inconsistent with it, the failure to find upon affirmative defenses will not be ground for reversal, unless it is shown by statement or bill of exceptions that evidence was submitted in relation to the issues presented by such defenses.

Foote, C. Hawes obtained a judgment against Clark, based upon two promissory notes. From that judgment, and an 'order denying a new trial, the defendant appeals.

[274]Appellant claims that the trial court should have granted the motion for a new trial, made in his behalf, because it was guilty of an abuse of discretion in not granting a continuance on the ground of the inflamed condition of the eyes of his counsel. The court saw the counsel and his condition at the time the application was made, and was a further witness to the fact that, notwithstanding his alleged disability, he immediately proceeded to participate and conduct the trial in person. Under this state of facts, we cannot agree with the defendant’s contention on that point.

It is next urged in behalf of the appellant that the court erred in refusing to grant a jury trial, as there was mo legal waiver of such trial. The facts surrounding the transaction seem to be that the cause was peremptorily set for trial on the 16th of April,. 1888, in a certain department of the superior court for the city and county of San Francisco. The defendant’s counsel was desirous of having it transferred to another department of that court, so as to s'ecure a delay in the trial. The plaintiff’s counsel acceded to this, if the other side would waive a trial by jury. The matter was agreed to upon that basis, and counsel appeared in open court and waived a jury, the cause being also set for trial on the 3d of May, 1888.

The waiver was not entered in the minutes in waiting, and when the cause came on for trial on the 14th of the same month, the counsel for defendant asked for a continuance, which, as we have seen, was refused. He then demanded a jury trial. The court, after full examination of the attorneys and the clerk, became satisfied, and properly so, that the defendant’s counsel had made the stipulation above adverted to, and had appeared in open court and waived a jury trial. Thereupon it refused a jury trial, and ordered the clerk to enter the waiver on the minutes nunc pro tune as of the date when the same had actually been made.

[275]Without going into the question as to whether the court had the power then to have such entry made, it is plain that the defendant is not in a position to complain of its action. He got the benefit of one part of the stipulation,—that is, the transfer of the cause to another department of the court than the one in which it was peremptorily set for trial,—and secured about a month’s delay, which seemed to be his prime object, and should not be allowed to avoid the accompanying burden of a trial before the court without a jury, -which he had in open court by his counsel waived. (Himmelmann v. Sullivan, 40 Cal. 126.)

Hawes v. Clark

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