Neil v. Gane

This appeal is from a judgment had upon a promissory note signed by appellant only. The co-defendant was appellant’s husband, and was made a party solely for that reason.

The complaint in the action was filed on October 15, 1924, and defendants duly answered November 15, 1924. The case came on for trial February 26, 1929, and plaintiff’s counsel made a motion for a continuance, so that he could file an affidavit showing that a deposition had been taken in the action and had disappeared from the files. On February 27, 1929, the affidavit having been filed, the trial was continued to March 27, 1929, to enable plaintiff to take a new deposition, defendants’ attorneys at this time stating that they

Thereafter, defendant made a motion for a new trial, supported by an affidavit alleging that no stipulation extending time had been filed, and setting up the minute order of October 7, 1929, which stated that the deposition had been rejected and a continuance granted. This motion for a new trial was denied.

Appellant’s numerous specifications of error, for the sake of brevity, are here considered in three groups.

Appellant first complains that the court erred in granting the continuances of May 28, 1929, and July 1,

“A motion to postpone a trial on the ground of the absence of evidence can only be made upon affidavit showing the materiality of the evidence expected to he obtained; and that due diligence has been used to procure it. . . . ”

The section also contains the following language:

“The court may require the moving party, where application is made on account of the absence of a material witness, to state upon affidavit the evidence which he expects to obtain; ...”

The record, as presented here, shows that prior to the continuance of May 28, 1929, the cause had been continued to secure plaintiff’s evidence by deposition, and that defendants’ counsel had agreed to submit cross-interrogatories. This defendants’ counsel failed to do, and further he refused to join in a stipulation to take plaintiff ’s deposition, thus necessitating the taking of the deposition on formal notice. The facts were all before the court. The delay was the result of defendants’ own action. A deposition is but the method, permitted in certain prescribed eases, of securing the evidence of material witnesses in trials had before our courts. The matter of the continuance of the time of trial for the purpose of securing the evidence of a material witness is a motion addressed to the sound and judicial discretion of the trial court, and unless there has been a clear abuse by the court of this discretion, the order granting the continuance will not be disturbed upon appeal.

“On a motion for continuance of the trial of a case it is the duty of the trial judge, which the law presumes he will faithfully perform, to work out the justice of the situation; his action in the exercise of a sound discretion is final and cannot he disturbed.” (Flynn v. Fink, 60 Cal. App. 670 , 675 [ 213 Pac. 716 , 717].)

In the ease of Light v. Richardson, 3 Cal. Unrep. 745 [ 31 Pac. 1123 ], in holding that the requirement of section 595 of the Code of Civil Procedure as to the filing of an affidavit where a continuance was sought on account of the absence of a material witness was not imperative, the court

Under the circumstances of the instant case, the granting of the continuances complained of by appellant cannot be said to amount to an abuse of discretion on the part of the trial court.

Appellant next assigns as error certain alleged irregularities in the deposition of plaintiff offered in evidence at the trial. The consideration of these alleged irregularities is unnecessary here, for the reason that if it be conceded that the deposition was erroneously admitted in evidence there is still ample evidence present in the bill of exceptions to support the finding made by the court and the judgment appealed from. Plaintiff’s complaint alleges the due execution and delivery of the note in question and defendants’ answer admits these facts, and by way of affirmative defense alleges payment of the note. The note was offered by the plaintiff at the trial and received in evidence. The record here fails to disclose any evidence whatsoever in support of defendants’ plea of payment, or that the note had upon it any indorsement whatsoever.

“The defense of payment is affirmative matter and requires proof by the defendant to support and establish it, and possession by the plaintiff of the note itself, bearing no endorsement or other evidence of payment, raises a presumption that the note is wholly unpaid. (Light v. Stevens, 159 Cal. 292 [ 113 Pac. 659 ].) . . . Conceding that there was other evidence to the contrary, the result would merely be a finding against the defendants upon conflicting evidence.

The last question presented by appellant involves the refusal of the trial court to dismiss the action on December 6, 1929. Appellant rests her contention that the action should have been dismissed as of that date upon the fact that the answer in the action was filed November 15, 1924, more than five years prior to the date of the motion to dismiss, and that no written stipulation extending time had been made or filed. The record here shows that the action was brought to trial on July 1, 1929, some four months before the running of the five-year period specified by section 583 of the Code of Civil Procedure. This section only requires that the action be brought to trial within the five-year period, and places no limitation upon when the trial shall be completed. In the instant case, the action was brought to trial within less than five years, the only requirement of the statute.

The judgment is affirmed.

Conrey, P. J., and York, J., concurred.