§ 1131. Time of trial.-In Oklahoma, where issues are made up during a term of court, the case is not usually triable at that term earlier than ten days after the issues are framed.1 Where the issues have once been fully made, subsequent changes by the filing of new pleadings need not delay the trial. The court may place an action on the calendar for the next term after the issues are, or should have been, made up.3 § 1132. Notice of trial.-The court, in the absence of a showing of unpreparedness, may proceed to the trial of the case upon an informal notice given by letter. A defendant who has appeared has his standing in the case until upon motion or notice an order of default has been properly claimed and entered against him, and this standing entitles him to notice of trial.5 § 1133. Continuance.-Under the code provision that the court may render judgment against one or more de 1 Conwill v. Eldridge, 35 Okl. 537, 130 Pac. 912; Title Guaranty & T. Co. v. Turnbull, 40 Okl. 294, 137 Pac. 1178. 2 Chicago, R. I. & P. Co. v. Pitchford, 44 Okl. 197, 143 Pac. 1146; King v. King, 42 Okl. 405, 141 Pac. 788. 3 Wyo. Laws, sec. 4458, Amendments 1915, p. 63. 4 Brown v. Greer, 16 Ariz. 222, 141 Pac. 843. 5 Molloy v. Union Transfer etc. Co., 60 Wash. 331, 111 Pac. 160. fendants and leave an action to proceed against the others, the court may continue the hearing for an accounting against one defendant and proceed against other defendants on other matters. § 1134. Contents of affidavit.-An affidavit in support of a motion for continuance because of the absence of witnesses must show that the applicant believes the proposed testimony to be true. The affidavit must show where the absent witness resides and the probability of procuring his testimony within a reasonable time.8 § 1137a. Death or disability of party or attorney.—The death or disability of a party or his attorney may be good ground for a continuance, but not the illness of the party, without a showing that he probably can attend court within a reasonable time. The illness of the president of a corporation party is not ground for a continuance.10 In a foreclosure action the death of defendant's grantor, who was the original mortgagor, does not warrant a continuance where no deficiency judgment is sought against him.11 11 § 1137b. Absence of party or attorney.—A party who is a material witness in his own behalf may not obtain a continuance merely because of his absence, unless detained because of an obstacle which he could not overcome.12 So the absence of a party due to the advice of his attorney that the case would be dismissed will not warrant a con 6 Bell v. Staacke, 159 Cal. 193, 115 Pac. 221. 7 Wood v. French, 39 Okl. 685, 136 Pac. 734. 8 St. Louis etc. Ry. Co. v. Cox, 26 Okl. 331, 109 Pac. 511; Rogers v. Rogers, 57 Colo. 132, 140 Pac. 193. 9 Cohn v. Clark (Okl.), 150 Pac. 467. 10 Jennings Co. v. Dyer, 41 Okl. 468, 139 Pac. 250. 11 San Diego Realty Co. v. Hill, 168 Cal. 637, 143 Pac. 1021. 12 Neven v. Neven, 38 Nev. 541, 148 Pac. 354, 154 Pac. 78. tinuance.18 The court may properly grant a continuance, in an action for divorce where it is shown that the defendant is in a distant state and without means.14 Where a defendant absents himself from the state on business with knowledge that his case may be called at any time, no continuance should be granted.15 Upon a showing that defendant is out of the county for his health and will return in two months, and is the only witness who can prove his defense, a continuance should be granted.1 On an application for continuance because of the absence of the party's attorney, the affidavit should show that the absent attorney is the sole attorney, the facts as to his absence, and the effort made to procure other counsel.17 Where an attorney refuses to act further for his client at the time the case is called for trial and the court continues the case until the next day to enable the defendant to secure other counsel, it is not an abuse of discretion to then proceed with the trial.18 § 1141. Preventing continuance.-A party may prevent a continuance by stipulating that the statements contained in the application for continuance may be read as the deposition of the absent witness, but he is not entitled to impeach the testimony of such witness,19 but the absent witness may be produced by the opposite party, and may testify in part contrary to the statement made by the moving party and the admissions made by the opposing party to prevent the continuance.20 13 Cox v. Kirkwood, 41 Okl. 704, 139 Pac. 980. 14 Hyser v. Hyser, 53 Colo. 199, Ann. Cas. 1914B, 356, 124 Pac. 346. 15 Miller v. Brown, 18 Idaho, 200, 109 Pac. 139. 16 Betts Spring Co. V. Jardine Mach. Co., 23 Cal. App. 705, 139 Pac. 657; Strom v. Toklas, 78 Wash. 223, 138 Pac. 880. 17 Pool v. Riegal, 46 Okl. 5, 147 Pac. 1193. 18 Johnston v. Dakan, 9 Cal. App. 522, 99 Pac. 729. 19 National Council, Knights and Ladies of Security v. Owen (Okl.), 149 Pac. 231. 20 Zobel v. Fannie Rawlings etc. Co., 49 Colo. 134, 111 Pac. 843. 1157. Equity cases. CHAPTER XLVI. TRIAL BY THE COURT. § 1158. Argument by counsel. § 1159. Evidence. § 1160. Findings by the court-Time to file. § 1160a. Notice of findings in California. § 1164. Facts, how found. § 1167. Findings contrary to admissions in the pleadings. § 1169a. Where to be signed. § 1187. Amendment of findings. Findings, how construed. § 1190. Form 393. Findings in action for divorce. § 1190a. Form 393a. § 1195a. Form 398a. Findings in action for divorce-Another form. § 1157. Equity cases.-Where an equitable defense is interposed in an action at law or a cross-action at law is interposed in an equity suit, the proper procedure is to dispose of the equity issues first,' and if an answer raises a question preliminary to the right of the court to determine the merits, such question should be determined first.2 § 1158. Argument by counsel.-A counterclaim, being in the nature of a confession and avoidance, casts the burden of proof upon the defendant, and he is therefore entitled to open and close the argument.3 Where the party having the burden of proof makes an inadequate opening state 1 Penninger Lateral Co. v. Clark, 22 Idaho, 397, 126 Pac. 524; American National Bank v. Donnellan, 170 Cal. 9, Ann. Cas. 1917C, 744, 148 Pac. 188. 2 McKim v. District Court, 33 Nev. 44, 110 Pac. 4; Farnum v. Kern Valley Bank, 12 Cal. App. 426, 107 3 Justice v. Brock, 21 Wyo. 281, 131 Pac. 38, 133 Pac. 1070; Power & Bro. v. Turner, 37 Mont. 521, 97 Pac. 950. ment, and the opposing party makes no reply, no further argument should be allowed, unless the court, in its discretion, permits the opening party to make a further argument, in which event the opposing party should be allowed to answer and the one upon whom the burden rests should be allowed to close.* 5 § 1159. Evidence. The plaintiff, as part of his case in chief, may offer evidence in support of his theory, and is not precluded from so doing merely because defendant states something different in his answer, but evidence which can be only for rebuttal should not be offered in chief. The admission or exclusion of evidence not strictly in rebuttal rests in the discretion of the trial court." The plaintiff, in rebuttal, is confined to evidence in reply to that of his opponent, but the court may permit original testimony to be given. Evidence in rebuttal may be excluded where the matter was fully covered in chief." Where the defendant moves for nonsuit upon the ground of variance, the court may reopen the case and take further testimony.10 The case may be reopened after the rendition of judgment but before it is entered to allow plaintiff to prove its incorporation and right to do business in the state,10 but the motion to reopen the case for additional evidence must be supported by affidavit or other evidence excusing the failure to produce the evidence before the case was submitted."1 4 Fire Assn. v. Farmers' Gin Co., 39 Okl. 162, 134 Pac. 443. 5 Macchi v. Portland Ry. etc. Co., 76 Or. 215, 148 Pac. 72. 6 Allen v. Shires, 47 Colo. 433, 107 Pac. 1070. 7 In re Miller's Estate, 36 Utah, 228, 102 Pac. 996. 8 Beach v. Schroeder, 47 Colo. 312, 107 Pac. 271; Crosby v. Portland Ry. Co., 53 Or. 496, 100 Pac. 300, 101 Pac. 204. Kimble v. Stackpole, 60 Wash. 35, 35 L. R. A. (N. S.) 148, 110 Pac. 677. 10 San Pedro Lumber Co. V. Schroeter, 156 Cal. 158, 103 Pac. 888. 10a Riverside Portland Cement Co. v. Masson, 69 Or. 502, Ann. Cas. 1916A, 127, 139 Pac. 723. 11 Pfoh v. Porter, 23 Cal. App. 59, 137 Pac. 44. |