Southern Pacific Co. v. Schwartz

KINCAID, J. pro tem.* Appeal is taken by Fred Schwartz from the judgment herein in favor of plaintiff, from order dismissing cross-complaint and from the order denying appellant’s motion for a new trial. No appeal lies from the trial court’s denial of defendant’s motion for a new trial; that ruling may be reviewed only through an appeal from the judgment. (Hamasaki v. Flotho, 39 Cal. 2d 602, 608 [248 P.2d 910].)

Plaintiff’s complaint named the appellant Fred, Morris Schwartz, Jack Bulwa and Harry Smookler as defendants. The complaint alleges, in substance, that a balance of $3,040.04 was due plaintiff from defendants for the transportation of rubber and metal salvage goods from the State of Georgia to Los Angeles. On or about September 18, 1959, Fred and Morris Schwartz filed an answer denying the allegations of the complaint. A cross-complaint was also filed by Fred and Morris Schwartz, as copartners doing business as Central Tire and Salvage Company, against plaintiff alleging the conversions by it on or about May 14, 1959, of 959 used automobile tires of a value of $5,400. The other named defendants answered the complaint herein, and respondent filed an answer to said cross-complaint.

On August 21, 1962, the cause was called for trial, plaintiff, defendants Smookler and Bulwa and B. E. Allen, duly appointed receiver for Central Tire and Salvage Company, appearing in person and by respective counsel, and Morris Schwartz appearing in propria persona, with appellant who was also in propria persona not being present. The request by appellant by telegram on the day of but prior to trial, for a continuance for a 24-hour period, on the grounds as stated in said telegram, was denied. The cross-complaint was dismissed on motion of B. E. Allen, receiver of cross-complainant. Defendant Morris Schwartz joined in the motion to dismiss. Evidence was then offered on behalf of plaintiff and the court gave judgment in its favor against appellant Fred only in the amount of $3,040.04 and judgment was entered in favor of the other defendants against plaintiff. Findings of [483]fact and conclusions of law were waived by those parties who were present.

On September 4, 1962, appellant filed notice of motion to set aside the default and the judgment thereon, supported by the declaration of appellant and the declaration of his then attorney, Bernard R. Schulhof. This motion was denied after hearing on September 14, 1962. On October 17, 1962, judgment was filed in favor of plaintiff and against appellant in the sum of $2,866.20, without interest, and that it take nothing from the other defendants. On October 23, 1962, appellant filed a motion for new trial on the following grounds: (1) irregularities in the proceedings of the court or adverse parties, and an order of the court or abuse of discretion by which this defendant was prevented from having a fair trial ; (2) insufficiency of the evidence to justify the verdict; (3) accident or surprise that ordinary prudence could not have guarded against. Declarations were filed by appellant and Schulhof in support of the motion for new trial and an affidavit by Malcolm McCarthy, attorney for Smookler and Bulwa and a declaration by John R. Crowe, attorney for the Receiver were filed in opposition to said motion. The matter was argued and on December 10, 1962, the court made its order denying the motion for new trial.