Ferrari v. Mambretti

DOOLING, J. pro tem. This appeal is prosecuted by the plaintiff from a judgment dismissing the action. The case was regularly set for trial on November 6, 1944, and the judgment of dismissal was ordered on that date following the statement of plaintiff’s counsel that “I am standing on the grounds that I am not ready to go to trial at this time. ’ ’ It was and is appellant’s position that the trial court abused its discretion in denying appellant’s motion for a continuance of the trial date to January, 1945.

A previous judgment for appellant in the same case was reversed in this court. (Ferrari v. Mambretti, 58 Cal.App.2d 318 [136 P.2d 326].) The nature of the action sufficiently appears from that opinion. After the remittitur was filed in the trial court appellant made a motion to file an amended complaint, which was denied. The motion was twice renewed and the last order of denial was made on June 21, 1944. On July 14, 1944, appellant filed a memorandum of motion to set the cause for trial and on August 29, 1944, a motion of respondent to advance the cause for trial was granted and the cause set for trial on October 16, 1944. Thereafter the court continued the case for trial to November 6, 1944.

On October 30, 1944, appellant moved the court for a continuance of the trial to some time in the month of January, 1945. This motion was supported by an affidavit of the plaintiff, one of plaintiff’s counsel, the affidavits of two men who were familiar with plaintiff’s business, and the affidavits of two witnesses for plaintiff, Voight and Wilson.

The motion for continuance was based upon two grounds:

1. That the requirements of plaintiff’s business are such that he could not attend the trial of his action during November or December without suffering irreparable financial loss, and

2. That the witnesses Voight and Wilson, who resided in Lake County beyond the reach of subpoena, could not attend the trial during those months.

The second ground may be summarily dealt with. The testimony of these witnesses would deal with only a small part of plaintiff’s services, a few trips to Lake. County with his uncle to buy turkeys. There was no showing in any of the affidavits that these two witnesses were the only ones who could testify to these facts. “In order to obtain a continuance it should further appear that the facts expected to be proved by the absent material witness cannot be otherwise proved.” (5 Cal.Jur. 992-993.)

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