WOOD v. SILVERS (1939)

District Court of Appeal, Third District, California.

WOOD v. SILVERS et al.

Civ. 6283

Decided: December 22, 1939

H.G. Crawford, of Lakeport, for appellants. L.R. Lambert, of Santa Rosa, for respondent.

On petition for a rehearing the appellants contend the affidavits of witnesses of the respondent, filed in support of the motion to retain the cause for trial in Sonoma county, are fatally defective for failure to affirmatively aver that they would actually be called as witnesses at the trial. It is true that those affidavits merely recite that “If I am called as a witness * I will testify as follows.” It is apparent none but the parties to a suit can know what witnesses may be called. The witnesses cannot state with assurance they will actually be called. The law does not require impossibilities. The affidavit of a witness, therefore, need not necessarily contain such an affirmative declaration. In this case the affidavit of the plaintiff supplies that necessary statement. He avers that these affiants, whose affidavits are challenged, are necessary witnesses at the trial and that he cannot safely go to trial without their evidence. That statement meets the requirements of the law.

The affidavits further state certain witnesses were employed by the plaintiff until specified dates. In the absence of evidence to the contrary we must assume the employment ceased at the dates specified. There is no presumption created by section 1963, subdivision 32, of the Code of Civil Procedure, under such circumstances, that the employment of such witnesses continued to the time of the filing of the complaint or the hearing of the motion.

The petition for rehearing is denied.

PER CURIAM.