Jaffe v. Lilienthal
Before: Haynes
Synopsis
Appeal—Bill of Exceptions—Delay in Filing—Review of Order.— When the trial court has determined that a delay in filing a bill of exceptions has not been unreasonable, its order will not be reviewed upon appeal in the absence of a bill of exceptions setting out all the facts.
'Continúanoe—Necessary Absence of Plaintiff—Preparation for Trial.—Where, upon the day set for the trial of an action, the plaintiff’s attorney moved for a continuance upon affidavits showing that the plaintiff, who resided out of the state, was confined to his room by illness, and would not be able to leave his room for at least two months; that the plaintiff’s presence at the trial was indispensably necessary; that he was the only person who knew the whereabouts of the witnesses; that their names had not been communicated to plaintiff’s attorney, and that the attorney did not know the details of the case, it was error for the court to deny the continuance and proceed to a trial of the action.
Id.—Presence of Parties at Trial—Waiver—Dismissal.—It is the right of parties to be present at the trial of their cases, unless such right is waived by voluntary and negligent absence without reasonable excuse; and a dismissal on account of the absence of a plaintiff which involves the destruction of his rights should not be imposed, unless justice clearly requires it.
Id.—Contents of Affidavit—Materiality of Evidence.—An affidavit for a continuance on account of the absence of a party under section 594 of the Code of Civil Procedure need not show the materiality of the evidence expected to be obtained.
Haynes, C.— On the 21st of December, 1891, this cause was set for trial for January 6, 1892. On that day plaintiff’s attorney moved for a continuance upon affidavits of the plaintiff and his physician showing in substance that the plaintiff, who then and for about a year prior thereto resided in Seattle, Washington, was confined to his room by an attack of acute rheumatism to which he was subject, and was wholly unable to move or leave his room, and in the opinion of his physician would not be able to leave his room in less than two months. The affidavit of plaintiff further stated that his presence at the trial was indispensably necessary; that he was the only person who knew the whereabouts of the witnesses necessary to be called on his behalf; that their names had not been communicated to his attorney, nor the matters to which they would testify. D. M. Delmas, Esq., attorney for plaintiff, also presented his own affidavit that plaintiff’s presence was necessary, that he did not know the names of plaintiff’s witnesses, nor the details of the case.
No counter-affidavits were presented. The continuance was denied, plaintiff’s attorney left the courtroom, and a judgment was entered for nonappearance of the plaintiff, and the plaintiff appeals.
Plaintiff’s bill of exceptions was settled and allowed February 8, 1892, but was not then filed. On January 5, 1893, the court made an order reciting that “ good cause appearing therefor” said bill of exceptions should be filed nunc pro turne as of February 3, 1892.
Respondent contends that the bill of exceptions was [177]not filed in time, and cites section 650 of the Code of ■Civil Procedure, the last clause' of which is as follows: '“When settled the bill must be signed by the judge or referee, with his certificate to the effect that the same is allowed, and shall then be filed with the clerk.”
Whether the delay "was “unreasonable,” as claimed by respondent, was for the court to determine. The circumstances which the court held were sufficient to justify the order do not appear. In the absence of a bill of exceptions setting out the facts this order cannot be reviewed.
We think the court erred in not granting a continuance.
Respondent suggests that it does not appear that plaintiff was a witness, nor that his attorney used any diligence to prepare for the trial.
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