Gale v. Gale

McWILLIAMS, J. pro tem. This is an appeal from a judgment rendered in favor of the defendant and cross-complainant. The principal questions involved are whether or not the trial court abused its discretion in refusing a continuance of the trial by reason of the absence of the appellant and, subsequently, in refusing a motion for a new trial based on the same ground. The respondent following the service upon him of a complaint for divorce promptly filed an answerin which he denied all the allegations of the complaint including the allegation of the marriage of the parties. The case was originally set for trial for April 17, 1940. By reason of the illness of the appellant the trial was continued to April 30. On that date appellant’s attorney presented to the [303]court a telegram received by him from one Frank T. Doyle, an attorney in New Orleans, in which city Mrs. Gale was then residing, which telegram stated that appellant was still ill and suggested that the action be dismissed without prejudice and re-filed when appellant had recovered. Pursuant to the suggestion the case was dropped from the calendar.

On' October 24, 1940, an amended answer and also a cross-complaint were filed on behalf of respondent. The cross-complaint alleged that the appellant and cross-defendant was claiming to be the wife of the cross-complainant and that her claim was without foundation although conceding that the parties had lived together over a period of years. This had occurred, according to the pleading of respondent, in California and Louisiana which states do not recognize common-law marriages. The cross-complainant asked for a declaratory judgment decreeing that the parties were not and never had been husband and wife, and enjoining appellant from using the name of Angie V. Gale in which name she had brought suit. Cross-complainant also asked that his title be quieted to certain real and also to personal property including the sum of approximately $13,000 in cash, most of which property, both real and personal, stood in the names of the parties in joint tenancy. An answer to the cross-complaint was filed on December 2, 1940. On December 12, respondent and cross-complainant filed a notice of motion to set the case for trial. On December 19, appellant’s attorney, Roland T. Williams, filed a notice of motion for an order permitting him to withdraw as her attorney. The notice of motion was supported by an affidavit in which he recited the history of the litigation. The affidavit also set forth the fact that since the case had been dropped from the calendar on April 30 of that year he had received no word from his client, although numerous letters and telegrams had been sent by him to her. On November 28, affiant said, he wrote to Attorney Doyle at New Orleans requesting his cooperation in securing answers from appellant to his letters. On November 28, the affidavit recited, affiant wrote to one Leo W. Seal, a resident of Mississippi and the brother-in-law of the appellant, informing 'Seal of the urgent necessity of cooperation by her. This message, according to a reply which Williams said he had received from Seal on December 7, was delivered to appellant.