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District Court of Appeal, Fourth District, California.

SCHOLTHAN et al. v. RUSALEM et al.*

Civ. 4701.

Decided: January 23, 1953

Phillip Barnett, Los Angeles, for appellants. Hilton H. McCade, Palm Springs, for respondents.

Plaintiffs appeal from a judgment of dismissal entered upon motion of defendants under the provisions of section 581, subdivision 3, of the Code of Civil Procedure. This section provides that an action may be dismissed by the court when either party fails to appear on the trial and the other party appears and asks for the dismissal. The questions involved are whether the trial court abused its discretion in refusing to grant a continuance of the trial and dismissing the action.

The action (for reformation of a deed to real property situated in Palm Springs) was filed August 10, 1950. After the cause was at issue, a preliminary conference was held at Indio and the trial date of March 6, 1952, was agreed upon by stipulation. On March 6th plaintiffs' counsel and witnesses appeared in Indio ready for trial. However, the court was engaged in another trial on that date and the matter was then set for trial on April 25, 1952. From the affidavit of counsel for plaintiffs it appears that he mailed a motion for continuance to the trial court on April 14, 1952; that this motion did not reach the trial court until April 25th; that the motion was made on the grounds that counsel for plaintiffs would be unavailable for trial on April 25th and on the further ground that said counsel would testify as a witness as to the various contracts and oral statements between the parties. The record shows that on April 25th plaintiffs' counsel appeared in court and announced to the judge that he was prepared to proceed with the trial; that the court was then trying a personal injury action in which the arguments were being made to the jury; that the court stated that it was apparent that the instant action would not be tried on that day. It also appears that the motion for continuance was argued and denied by the court.

The reporter's transcript shows that the following proceedings then took place:

‘The Court. (Referring to the time of trial of the instant action) It will have to trial, gentlemen, than's all I can say.

‘Mr. Robertson. (Counsel for plaintiffs) We did not intended to move for continuance of this matter today, we intended to go ahead with this matter and proceed with it, get it off your calendar and our calendar.

‘The Court. We will get it off the calendar at the very earliest moment.

‘Mr. Robertson. I can not come back next week, I am prepared to go to trial today. I don't want to be criticized because I am filing these things, we were prepared to go ahead today.

‘The Court. I am not criticizing you, I am just telling you your case will trail this case at the first moment. It will not be much longer, you just wait until this case concludes, whenever that is.

‘Mr. Robertson. Is the court going to assign a date for it?

‘The Court. No, you are just going to trail, you will have to stay right here. I am unable to tell you when this case will conclude; I thought it would be three days; it is now seven days.

‘Mr. Robertson. Do you try matters on Monday?

‘The Court. Not normally, it is calendar day and pretrial calendar, but it will follow at the very earliest opportunity, it will be the next case tried, I can assure you of that, that's all I can say, you will trail.

‘Mr. Robertson. Very well.’

In his affidavit on motion for a new trial counsel for plaintiffs stated that following these proceedings he was informed by the clerk of the court that Monday, April 28th, was a motion and pretrial conference day; that the instant case would undoubtedly not be tried on that day and in all probability would be tried on April 30, 1952.

The record shows that the personal injury action was concluded at about 6:30 P.M. on April 25th; that on Monday, April 28th, the trial court called the instant case for trial and counsel for the defendants announced that he was ready to proceed. Counsel for plaintiffs was not present and had apparently gone to San Francisco. The court then granted defendants' motion for a judgment of dismissal under the provisions of section 581, subdivision 3, of the Code of Civil Procedure and the judgment of dismissal was then entered.

The granting or refusing of a continuance is, as conceded by the appellants, a matter of discretion with the trial court. Except in the case of a clear abuse of such discretion, an appellate court will not interfere with the exercise thereof. 5 Cal.Jur. 968; Connor v. Jackson, 94 Cal.App.2d 462, 466, 210 P.2d 897; May v. Rosen, 91 Cal.App.2d 794, 798, 205 P.2d 1118; Foster v. Hudson, 33 Cal.App.2d 705, 707, 92 P.2d 959.

In the instant case, while the affidavits of plaintiffs' counsel indicated that he would be unable to represent plaintiffs at the trial on April 25th, and that his testimony at the trial could be material to the issues in dispute, it appears that associate counsel for plaintiffs was present in court and ready to proceed with the trial on that day. The court then advised him to remain in Indio and that the trial would follow the matter then being tried at the very earliest opportunity. Counsel knew that the preceding case was being argued and would probably soon be concluded. Nevertheless, he left for San Francisco, disregarding the court's admonition to remain in attendance. Counsel for plaintiffs had notice of the time of trial from the court itself and further notice was unnecessary. Under the circumstances shown, we cannot say as a matter of law that the trial court abused its discretion in refusing a continuance and in ordering a dismissal of the action.

Judgment affirmed.

MUSSELL, Justice.

BARNARD, P. J., and GRIFFIN, J., concur.