Taecker v. Parker

HAINES, J., pro tem. The record shows that, on April 15, 1935, appellant Taecker, acting through an attorney, filed action in the Superior Court of Imperial County seeking damages from respondent, a physician, for alleged negligence in the treatment of an injury to one of the appellant’s eyes. Respondent’s answer was filed on November 16, 1935, and the ease was thereafter at issue. Various attempts were made to bring it on for trial but numerous continuances and resettings were from time to time made, always, so far as appears, at the request of appellant’s counsel, at times because of appel[144]Iant’s own physical inability to go to the Imperial Valley for trial of the case and at other times because of illness or other engagements on the part of his attorney. The cause was at length reset to be tried on April 19, 1938, of which due notice was given and according to the affidavit of respondent’s attorney he, on March 5, 1938, wrote appellant’s counsel not to count on any further continuance but that he would insist that the matter be tried and disposed of on April 19th. Appellant’s original attorney had meanwhile, with appellant’s cpnsent, associated an additional attorney with him who was expected in appellant’s behalf to conduct the actual trial. Application had been made for a jury but no deposit of fees originally made. According to the affidavit of appellant’s attorneys, whose offices are in Los Angeles, they received a wire dated April 15, 1938, from the county clerk at El Centro asking whether to summon a special jury and calling their attention to the circumstance that no jury fees had been deposited. The following day these fees were sent by wire to the clerk who, however, on the same day wired that the jury had been excused and the trial would be by the court. This wire came into the hands of appellant’s counsel on April-17th. According to the affidavit of appellant’s original attorney, he was obliged on April 18, 1938, to be in San Bernardino for the trial of a case there and while there, received a wire from his associate stating that appellant’s case had been continued to May 4th. The affidavit of such associate counsel states the fact to be “as he recalls’’ that he, on April 18th, after vainly trying to reach respondent’s counsel by telephone and talking by telephone to the clerk and the other Imperial County judge, finally succeeded in getting the trial judge by telephone and was informed by him that the jury had on April 15, 1938, been dismissed, as no jury fees had been deposited. He says he told the trial judge that these had meanwhile been sent and that he did not want the ease to be tried by the court. Thereupon, as he states, he was informed by the trial judge that the next time that there would be a jury in his court would be on or about May 4, 1938. The affidavit then proceeds: