Ferguson v. Dam

SPENCE, J. Plaintiff brought this action seeking to recover upon a promissory note. Plaintiff had judgment upon a trial by jury and from said judgment, defendant F. H. Dam appeals.

The complaint herein contained the usual allegations found in a complaint based upon a promissory note. The amended answer of defendant F. H. Dam set forth certain denials and further set forth certain affirmative allegations relating to the defense of want of consideration. At the close of the evidence, counsel for said defendant moved the trial court for an order permitting him to open and close the argument to the jury. The motion was denied.

Appellant contends that he was entitled “as of right to open and close the argument” and that the trial court erred in denying his motion. In our opinion this contention is without merit. Appellant cites authorities from other jurisdictions, but cites no authority in point from any jurisdiction having statutory provisions similar to section 607 of the Code of Civil Procedure. That section provides: “When the jury has been sworn, the trial must proceed in [703]the following order, unless the judge, for special reasons otherwise directs; ... 4. When the evidence is concluded, unless the case is submitted to the jury on either side or on both sides without argument, the plaintiff must commence and may conclude the argument.” It thus appears that appellant was not entitled as of right to open and close the argument. The trial court, in its discretion and for special reasons, might have granted such permission but we find no abuse of discretion in its refusal to do so. In Potapoff v. Mattes, 130 Cal. App. 421, the court said at page 426 [19 Pac. (2d) 1016]: “The authorities are practically unanimous in holding that the conduct of a trial is so largely in the discretion of the trial court that there must be made to appear an abuse of that discretion before an appellate court will interfere.” (See, also, Coogan Finance Corp. v. Beatcher, 120 Cal. App. 278 [7 Pac. (2d) 695]; East Bay Municipal Utility District v. Kieffer, 99 Cal. App. 240 [278 Pac. 476, 279 Pac. 178]; Watkins v. Glas, 5 Cal. App. 68 [89 Pac. 840]; Mendocino County v. Peters, 2 Cal. App. 24 [82 Pac. 1122]; People v. Hickman, 204 Cal. 470 [268 Pac. 909, 270 Pac. 1117].)

Appellant, further contends that counsel for respondent was guilty of misconduct in his argument to the jury. No report of the argument to the jury is found in the transcript. Appellant presented affidavits in support of his motion for a new trial and respondent presented a counter-affidavit. These affidavits are conflicting in many particulars. The trial court denied the motion for new trial and in support of its ruling we must assume that it resolved the conflicts in favor of respondent and must further assume that it determined that any alleged misconduct was not prejudicial to the rights of appellant. In Aydlott v. Key System Transit Co., 104 Cal. App. 621, the court said at page 629 [286 Pac. 456] : “A trial judge is in a better position than an appellate court to determine whether a verdict is probably due wholly or in part to misconduct of counsel and his conclusion in the matter will not be disturbed unless, under all the circumstances, it is plainly wrong. (Lafargue v. United Railroads, 183 Cal. 720 [192 Pac. 538].)” After a review of the entire record in the present case we are unable to say that the trial court was