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GIGY v. SCHAUB

Court of Appeal of California, Second District, Division One
Dec 23, 1933
136 Cal.App. 62 (Cal. Ct. App. 1933)

Opinion

Docket No. 7915.

December 23, 1933.

APPEAL from an order of the Superior Court of Los Angeles County. Douglas L. Edmonds, Judge. Affirmed.

The facts are stated in the opinion of the court.

E.A. Kline for Appellant.

Weber Kidder, Arthur A. Weber and Albert A. Kidder, Jr., for Respondent.


THE COURT.

Plaintiff appeals from an order denying her motion to vacate a judgment of dismissal entered in the superior court, which judgment was entered by reason of the failure of the plaintiff to produce any evidence at the trial of the action, after denial by the court of her motion for a continuance.

[1] From the record it appears that this case was regularly set for trial for August 28, 1930; that plaintiff's then counsel and plaintiff both knew that said cause was to be tried that day, and that neither plaintiff nor her witnesses were present. Nearly six months thereafter a motion was made by appellant for the purpose of setting aside said judgment, on the ground of mistake, inadvertence, surprise and excusable neglect. The motion was heard upon an affidavit of plaintiff and counter-affidavit of defendant's attorney.

It is not necessary to extend this opinion by making a detailed statement of the facts. After reading the affidavits we are satisfied that there was no abuse of discretion by the court in its consideration of said motion and denial thereof. Moreover, there is evidence tending to show that the plaintiff's long delay in presenting the motion was prejudicial to the defendant. It appears by uncontradicted affidavit that one of defendant's material witnesses, who was present to testify at the trial, has now returned to her home in an eastern state, and that her personal presence could not now be obtained at a trial of the action.

The order is affirmed.


Summaries of

GIGY v. SCHAUB

Court of Appeal of California, Second District, Division One
Dec 23, 1933
136 Cal.App. 62 (Cal. Ct. App. 1933)
Case details for

GIGY v. SCHAUB

Case Details

Full title:MABEL GIGY, Appellant, v. A.R. SCHAUB, Respondent

Court:Court of Appeal of California, Second District, Division One

Date published: Dec 23, 1933

Citations

136 Cal.App. 62 (Cal. Ct. App. 1933)
28 P.2d 41

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