Gray v. Sabin

The Court. This cause came regularly on for trial, having been set, by consent of all parties, on November 25, 1885. Counsel for plaintiff was absent. His clerk stated that he was unavoidably detained in Los Angeles, and asked for a continuance. The defendant objected to a continuance, but as there was another cause on trial, and as the next day was Thanksgiving Day, the court put the case over until Monday, November 30th. On the latter day, and the day following, the cause was called for trial, and the defendant answered ready. On December 2d, other business having been disposed of, the court ordered the case to proceed. The clerk again appeared on behalf of the attorney for plaintiff, and stated that said attorney was in Modesto, trying a case, although he had returned from Los Angeles to San Francisco since November 25th. Defendant objecting to a continuance, the court ordered the trial to proceed, a jury was impaneled, and no evidence having been offered on behalf of the plaintiff, a verdict was rendered for the defendant.

On December 10, 1885, the plaintiff served notice of motion to vacate judgment, on the ground that it was taken against him through his mistake and excusable neglect. In support of his motion, he presented an affidavit of merits, which also alleged that he expected his attorney to be present at the trial, that be was too poor to employ other counsel to take his place, and that he believed his attorney was actually engaged in another court in the trial of a cause. His counsel made affidavit [213]that, although he had returned to San Francisco on November 29th, he had, several months prior, engaged to be in Modesto to attend the trial of a cause there, set for November 23d, and afterwards continued to November 30th; that he was informed on his return to San Francisco, November 30th, this cause could not be reached for several days, on account of other business before the court, and that it was a custom of this court to continue causes for the convenience of counsel engaged in other courts. Counter-affidavits were filed, on behalf of the defendant, alleging that there was no custom under which causes were continued for the convenience of counsel engaged in the courts of outside counties; that counsel for plaintiff had long before agreed to dismiss this cause. J. L. Boone, a partner of the attorney for plaintiff, who was absent in Modesto at the time of the trial, corroborated the defendant in his statement as to the promise of a dismissal.

A clerk in the office of the attorneys for defendant stated that he had informed the attorney for plaintiff as to the day of the trial, and said attorney stated that he would not be present, that he was going to Los Angeles, and asked for a continuance, which the clerk said he had no authority to grant.