Gigy v. Schaub

California Court of Appeal

Gigy v. Schaub

28 P.2d 41, 136 Cal. App. 62, 1933 Cal. App. LEXIS 15

CourtCalifornia Court of Appeal

DecidedDecember 23, 1933

DocketDocket No. 7915.

StatusPublished

This text of 28 P.2d 41 (Gigy v. Schaub) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gigy v. Schaub, 28 P.2d 41, 136 Cal. App. 62, 1933 Cal. App. LEXIS 15 (Cal. Ct. App. 1933).

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Opinion

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.

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 *63 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.

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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.

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 *63 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.

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Bluebook (online)

28 P.2d 41, 136 Cal. App. 62, 1933 Cal. App. LEXIS 15, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gigy-v-schaub-calctapp-1933.