Eltzroth v. Ryan

Belcher, C. The plaintiff brought this action against Patrick Ryan and J. H. Wythe to quiet his title to a quarter-section of land in Tulare County. The defendants answered separately. The case as against Wythe was tried, and judgment rendered for the plaintiff. From that judgment, and an order refusing a new trial, an appeal was taken to this court, where the judgment and order were affirmed. (Eltzroth v. Ryan, 89 Cal. 135.) The case as against Ryan was, on the fourth day of March, 1889, set down for trial on the thirteenth day of that month. Ryan resided at Portland, Oregon, and his attorney at Oakland, in this state. The attorney received notice on the 7th of the month' that the case had been set for trial on the 13th, and immediately telegraphed his client to that effect. The defendant started for Oakland, and arrived there on the 10th, which was Sunday. On the next day he saw his attorney, and then for the first time learned that he was too sick to attend the trial at the time set for it. He advised with his attorney as to the best course to pursue, and attempted to procure other counsel in Oakland to go with him to Visalia, and try the case, but was unable to do so. The attorney and his attending physician then made affidavits showing the attorney’s sickness and inability to be present at the trial, and that there was not sufficient time to engage other counsel to conduct it, and also [586]that the attorney was familiar with all the facts of the case, and believed that his client had a meritorious defense. These affidavits were given to defendant, and he then started for Visalia, where he arrived on the 12ih. Immediately on his arrival he consulted E. 0. Larkins, an attorney at law residing there, and engaged him to appear in court the next day and move for a continuance.

When the case was called on the 13th, Larkins appeared, and moved for a continuance on the affidavits which defendant had brought from Oakland. The court asked the attorney if his client was prepared to pay the costs of the continuance, and.he answered that he was not. The court then denied the motion, and Larkins withdrew from the case. The trial was thereupon commenced, and after the introduction of oral and documentary evidence by the plaintiff, the cause was submitted and judgment rendered in his favor, but no findings were .filed.

The defendant moved for a new trial, upon a bill of exceptions and upon new affidavits made by himself and his attorney, setting up, among other things, that after defendant arrived in Visalia he had not sufficient time to procure the attendance of his witnesses or familiarize Larkins or any attorney with the facts of the case.