Majority
p. 364FLEMING v. HAWLEY. No. 8854; September 1, 1884. 4 Pac. 576.
Headnote
Continuance — Dismissal of Complaint — Intervention.— The granting of a continuance and dismissal of a complaint in intervention being, under the circumstances, discretionary with the court, held that, where there is no abuse of discretion, the order of the lower court refusing the same will not be interfered with on appeal.APPEAL from the Superior Court of Tulare County.
This was an action for the recovery of certain flasks of quicksilver. Defendant denied plaintiff’s right to the same, claiming ownership in himself. The Empire G. & S. M. Co., being allowed to intervene, claimed possession and ownership in itself, which was denied by both plaintiff and defendant. On the trial, no counsel appearing for the intervener, the defendant’s counsel, in behalf of the intervener, moved for a continuance, which, being refused, he moved for a dismissal of the complaint in intervention without prejudice. This was refused, and thereafter judgment was rendered for plaintiff and against defendant. The intervener now appeals.
W. H. Hart and Atwell & Bradley for appellant; Edwards & Dubrutz for respondent.
We cannot say the court below abused its discretion in refusing a continuance of the trial of the cause. Nor, under the circumstances appearing, can we hold as error the refusal of the court to permit the dismissal of the complaint in intervention. There was no judgment against the intervener for costs, as seems to be supposed by counsel.
Judgment and orders affirmed.