CHAPTER XLV.

TRIAL IN GENERAL.

§ 1130. What constitutes.-All actions are tried in one of three ways: 1. If it be an action at law, and a jury is not waived, it will be tried by a jury; 2. All equity actions are tried by the court; 3. Trial by referee, which is generally done by consent of counsel, and order of reference being made in pursuance of such consent. A trial is an examination before a competent tribunal, according to the law of the land, of the facts or law put in issue in a cause, for the purpose of determining such issue.2 It is a judicial examination of the issues in an action, whether they be issues of law or of fact. The term has a general and a restricted meaning. In its general sense, it means the investigation and decision of matter in issue between parties before a competent tribunal; in its restricted sense, it means the investigation of the facts only.

The mere appointment of a day when the trial shall begin is no part of the trial; but the calling and examination of jurors is a part of the trial." In Washington, it has been held that a view by the jury is no part of the trial, and that no evidence may be offered to the jury at that time."

Generally speaking, the trial is to be deemed incomplete until all issues, both of law and of fact, have been determined, and until final judgment has been entered. The hearing and disposition of a motion for a new trial has been held to constitute a trial within the meaning of the California code."

§ 1131. Time of trial. The clerk must cnter all causes upon the calendar of the court according to the date of issue. Causes once placed on the calendar must remain upon the calendar until finally disposed of; provided, that causes may be dropped from

1 See Cal. Code Civ. Proc., § 592. 2 Tregambo v. Comanche Min. Co., 57 Cal. 501; Finn v. Spagnoli, 67 Cal. 330, 7 Pac. 746.

8 Mathews v. Clayton County, 79 lowa, 510, 44 N. W. 722; State v. Kendall, 56 Kan. 238, 42 Pac. 711. 4 Jenks v. State, 39 Ind. 1.

5 State v. Abrams, 11 Or. 169, 8 Pac. 327.

Territory v. Kelly, 2 N. Mex. 292. 7 State v. Lee Doon, 7 Wash. 308, 34 Pac. 1103.

8 Hill v. State, 41 Tex. 253.

Cal. Code Civ. Proc., § 398; Finn v. Spagnoli, 67 Cal. 330, 7 Pac. 746.

the calendar by consent of the parties, and may be again restored upon notice.10 In those jurisdictions where terms of court obtain, the trial should be completed, at least so far as the introduction of testimony is concerned, at the term at which it is begun.11 Counsel have a right to rely on the presumption that the causes upon the calendar will be heard in their regular order, and to act upon that belief in calculating how long they will have for preparation.12 The clerk must keep, among the records of the court, a register of actions. He must enter therein the title of the action, with brief notes under it from time to time of all papers filed and proceedings had therein.18 When a jury is waived, and the whole case is tried before the court, the record should show whether the trial was confined to the equitable defenses alone, or included all the defenses in the cause. It should distinctly appear that the equitable defenses were first tried and disposed of; or if all the issues were tried and submitted together, that fact should appear. In the natural order, it is the duty of the court first to try and decide upon the equitable defense before proceeding with the action at law. So held in an action where the judgment enjoined the plaintiff from setting up a particular title, without finally deciding the title or right of possession of the parties to the land in controversy.14

§ 1132. Notice of trial.-Either party may bring an issue to trial or to a hearing, and in the absence of the adverse party, unless the court for good cause otherwise directs, may proceed with his case, and take a dismissal of the action or a verdict or judgment as the case may require; provided, however, if the issue be tried as an issue of fact, proof must first be made to the satisfaction of the court that the adverse party has had five days' notice of such trial.15 In North Dakota, to entitle a party to an action in the district court in which issue has been joined to bring such issue to trial at a term of court, it is necessary that, prior to such term, he shall furnish the clerk of the court with a note of the issue to be tried, and shall also serve his opponent with a notice of trial.16

10 Cal. Code Civ. Proc., § 593.

11 Butler v. McMillen, 13 Kan. 385.

12 Belmont v. Erie R. R. Co., 52 Barb. 637.

18 Cal. Code Civ. Proc., § 1052.

14 Martin v. Zellerbach, 38 Cal. 300, 99 Am. Dec. 365.

15 Cal. Code Civ. Proc., § 594.

16 N. Dak. Rev. Codes, § 5422; Oswald v. Moran, 9 N. Dak. 170, 82 N. W. 741.

As to notice of trial before a justice of the peace, the California code 16a makes the following provision: "When all the parties served with process shall have appeared, or some of them have appeared, and the remaining defendants have made default, the justice must fix the day for the trial of said cause, whether the issue is one of law or fact, and give notice thereof to the parties to the action who have appeared, but in case any of the parties are represented by an attorney, then to such attorney. Such notice shall be in writing, signed by the justice, and substantially in the following form:

"In the justice's court, . . . township [or city, or city and county], county, or city and county of state of California,

"To . . ., plaintiff, or ..., attorney for plaintiff, and to defendant, or . . ., attorney for defendant.

"You and each of you will please take notice that the undersigned justice of the peace before whom the above-entitled cause is pending, has set for hearing the demurrer of . . ., filed in said cause [or has set the said cause for trial, as the case may be], before me at my office in said township [or city, or city and county], at . . . o'clock . . . M., on the . . . day of

...

...

19..

Justice of the Peace."

The only object of a notice of trial is to give the party upon whom it is served an opportunity to prepare for trial. And a notice of trial, erroneous as to the day of trial is nevertheless sufficient, if, when read in the light of other information which the law gives, it truly informs the party of the time and place of trial.17

§ 1133. Continuance. The jurisdiction to hear and determine a cause or proceeding involves the power to postpone the time of hearing for good cause, unless prohibited by statute.18 A motion to postpone a trial on the ground of the absence of evidence can only be made upon affidavit, showing the materiality of the evidence expected to be obtained, and that due diligence has been used to procure it. A trial shall be postponed when

16a Cal. Code Civ. Proc., § 850, as amended 1909, p. 968.

17 Smith v. Northern Pacific R. R.

Co., 3 N. Dak. 177, 53 N. W. 173.

18 Curtis v. Underwood, 101 Cal. 661, 36 Pac. 110.

19

it appears to the court that the attorney of record, the party, or the principal witness is actually engaged in attendance upon a session of the legislature of the state, as a member thereof, but not necessarily in case of such absence of a partner of the attorney who has had full control and conduct of the case." The court may require the moving party, where application is made on account of the absence of a material witness, to state upon affidavit the evidence which he expects to obtain; and if the adverse party thereupon admits that such evidence would be given, and that it be considered as actually given on the trial, or offered and overruled as improper, the trial must not be postponed.20 The cause having come on for trial, one of the parties, not being ready for such trial, may move the court, upon affidavit, for a continuance on any one of the following grounds: 1. Absence of witnesses or witness; 2. For any other reason which would, if the case were forced to trial, be subversive of the ends of justice-e. g. sickness of counsel, or of the parties, or a party, to the action, etc.

Courts usually require, and ordinarily should require, a showing to be made by affidavits, in order to continue causes for the term, when such continuance is objected to by either party; but when a state of affairs exists that is notorious, and about which there could be no conflict (e. g. the destruction by fire of so much of the city where the court was held as to render it impossible to find a suitable room in which the court could meet), the court is authorized of its own motion to continue the causes for the term.21

The granting or refusing a continuance is in the sound discretion of the court, and not subject to review, except in cases of gross abuse of that discretion;22 and it is not abuse where no

19 Barker etc. v. Murman, 20 Colo. App. 354, 78 Pac. 1071.

20 Cal. Code Civ. Proc., § 595; Ariz. Civ. Code, par. 1383; Idaho Rev. Codes, § 4372; Mont. Rev. Codes, § 7036; Nev. Comp. Laws, § 3255; Or. B. & C. Codes, § 115; Utah Rev. Stats. § 3133; Wash. Bal. Codes § 4977; Wyo. Rev. Stats., § 4297.

21 Ex parte Larkin, 11 Nev. 90. 22 Frank v. Brady, 8 Cal. 47; Musgrove v. Perkins, 9 Cal. 211; Pilot Rock Creek Canal Co. v. Chapman,

11 Cal. 161; People v. Gaunt, 23 Cal. 156; Griffin v. Polhemus, 20 Cal. 180; Hastings v. Hastings, 31 Cal. 95; Harper v. Lamping, 33 Cal. 641; Carey v. Philadelphia etc. Petroleum Co., 33 Cal. 694; People v. Wade, 118 Cal. 673, 50 Pac. 841; Freleigh v. State, 8 Mo. 606; Scogin v. Hudspeth, 3 Mo. 123; Chamber v. Lane, 5 Mo. 289; Beatty v. Sylvester, 3 Nev. 228; Choate v. Bullion Min. Co., 1 Nev. 73; Ogden v. Payne, 5 Cow. 15; Barker v. Haskell, 9 Cush. 218; Leg

legal showing is made.23 And this discretion may be exercised at any stage of the proceedings, on such terms as are just." Courts are extremely liberal in granting adjournments.25 It is error to refuse a continuance when a good cause is shown.20 An affidavit showing the continued illness of the defendant, and that he cannot attend the trial or have his deposition taken without serious risk to his life, entitles him to a continuance.27 But even then, where the action of the court in refusing a continuance approaches an arbitrary exercise of discretion, the proper course of the party is to move for a new trial.28 And the only way of presenting an order refusing a continuance for review is by bill of exceptions.29 A continuance relating back may be entered at any time to effect the purposes of justice.30

The codes generally contain special provisions as to continuances in justices' courts.31 No notice of an application for continuance is usually given; the application is generally made when the cause comes on for trial. Sometimes, however, the application is made before the day of trial, so that no preparation for trial need be made. Affidavits for a continuance on the ground of absence of witnesses should be made by the defendant himself, or by some one else who has direct knowledge of the facts.32 Upon the overruling of a demurrer, a justice may grant a continuance of two days' time for the defendant to answer.33 A justice granting the request of a defendant for a continuance

gett v. Boyd, 3 Wend. 376; Congar v. Galena etc. R. R. Co., 17 Wis. 477; Gaines v. White, 1 S. Dak. 434, 47 N. W. 524; Life Ins. Co. v. Gisborne, 5 Utah, 319, 15 Pac. 253; Dawson v. Coston, 18 Colo. 493, 33 Pac. 189; Kneebone v. Kneebone, 83 Cal. 645, 23 Pac. 1031; Barnes v. Barnes, 95 Cal. 171, 30 Pac. 298, 16 L. R. A. 660; Berger v. Harrison, 1 Overt. 483; Baumberger v. Arff, 96 Cal. 261, 31 Pac. 53; Young v. Patton, 9 Or 195; Dupont v. McAdow, 6 Mont. 226, 9 Pac. 925; Catlin v. Harris, 7 Wash. 542, 35 Pac. 385; Zelinsky v. Price, 8 Wash. 256, 36 Pac. 28; Doll v. Stewart, 30 Colo. 320, 70 Pac. 326. 23 In re Lovern, 137 Cal. 680, 70 Pac. 783; Purse v. Purcell, 43 Colo. 50, 95 Pac. 291.

24 Okla. Civ. Code, § 328; Mc

Mahan v. Norick, 12 Okla. 125, 69
Pac. 1047.

25 Turner v. Morrison, 11 Cal. 21. 26 Moore v. McCulloch, 6 Mo. 444; Tunstall v. Hamilton, 8 Mo. 500.

27 Morehouse V. Morehouse, 136 Cal. 332, 68 Pac. 976.

28 Pilot etc. Co. v. Chapman, 11 Cal. 161.

29 Jacks v. Buell, 47 Cal. 162; People v. Ashnauer, 47 Cal. 98; Interstate Land etc. Co. v. Patton, 21 Colo. 503, 42 Pac. 673.

30 Sheppard v. Wilson, 6 How. 260, 12 L. Ed. 430.

31 Cal. Code Civ. Proc., §§ 873,

877.

32 People v. Jenkins, 56 Cal. 4. 83 Hall v. Kerrigan, 135 Cal. 4, 66 Pac. 868; Cal. Code Civ. Proc., §§ 872, 874.