H. & J. Mabury Co. v. Bryant

WASTE, C. J. In October, 1931, plaintiff Mabury Company brought this action to quiet title to some 1260 acres of [587]land located in Kern County. In December, 1931, the defendant, administrator of the estates of Berryman Bryant and Henrietta F. Bryant, both deceased, answered and also cross-complained, asserting an interest in and seeking to quiet title to about 17,920 acres of land, called the Antelope ranch, which included within its borders the 1260 acres described in plaintiff’s complaint. In April, 1936, the original defendant administrator having died, there was a substitution of a new defendant administrator. In May, 1936, plaintiff filed an answer to defendant’s cross-complaint, claiming title to all the land described therein save about 320 acres, and praying that its title thereto be quieted.

After further proceedings in the cause, wherein a demurrer to the answer to the cross-complaint was overruled, and the trial date was set, defendant, on September 11, 1936, moved for a continuance on the ground that there were two other causes of action pending between the same parties as to the same subject-matter, and also moved that he be allowed to amend his answer and cross-complaint to include a second cause of action for an accounting of rents, issues, and profits of the property. The court denied the motion, with the proviso that if it should develop on the trial on the merits that an accounting would be advisable and necessary, then a continuance should be granted for the hearing of that part of the action. Defendant thereupon, on September 15th, filed notice of appeal from the order denying him a continuance of time of trial and the right to amend his pleadings. The following morning, September 16th, the cause was called for trial on the merits. Plaintiff appeared for trial. Counsel for defendant appeared ‘‘Generally and only for the purpose of objecting to the trial ... on the grounds that there is an appeal pending from a denial of a motion for continuance.” After argument defendant’s objections to proceeding were overruled and the trial proceeded, neither defendant nor his counsel making an appearance at the afternoon session of court. At the close of the trial the court made findings in favor of plaintiff and on September 28, 1936, gave judgment quieting plaintiff’s title to both the property described in its complaint and that claimed by its answer to defendant’s cross-complaint. On September 30th defendant made a motion, supported by affidavit of counsel, to set aside the judgment under section 473 of the Code of Civil Procedure, on the [588]