104 Cal. 35 | Cal. | 1894
This action is brought against the defendant Peck as principal, and the defendants Victor and Noble as sureties on Peck’s official bond as constable, to recover damages for breach of the condition thereof “that he and said Peck would well, truly, and faithfully perform the duties of his said office during his said term.”
The complaint was demurred to generally upon the ground that it did not state facts sufficient to constitute a cause of action, and specially upon the following among other grounds not necessary to be stated:
1. That the defendants Victor and Noble, sued for breach of contract, were improperly joined with the defendant Peck, sued as a trespasser.
2. That several causes of action were improperly joined, to wit, a cause of action for injuries to property and a cause of action founded on contract.
The demurrer was properly overruled upon these grounds on the authority of Van Pelt v. Littler, 14 Cal. 194; Black v. Glasby, 97 Cal. 482; and Sam Yuen v. McMann, 99 Cal. 497. The case of Ghiradelli v. Bourland, 32 Cal. 585, cited by appellants as authority to the contrary, is not in point. As to the other grounds of demurrer, it is sufficient to say they are equally untenable. Upon the overruling of the demurrer the defendants answered, and thereupon, without notice to the defendants or their attorney, the case was assigned or transferred by the judges of the superior court of Fresno county from Department Two, where it had laid without being set for trial for more than two years, to Department Three of that court, and by them ordered to be placed on the trial calendar of that department. Notice was thereafter published in two newspapers of general circulation in that county that on April 4, 1893, this calendar would be called, and the cases thereon set for trial, and on that day it was called, and this case set for trial in that department for June 22d following. After-wards this calendar was published in the same newspapers, and on the day stated the case was called for trial, and neither of the defendants or their attorney appearing, the court proceeded with the trial of the
The application for relief is based upon the provisions
It is claimed by appellants that the court below abused its discretion in making the order appealed from, because they had no notice of the assignment of the case to Department Three, nor of the regular calling of the trial calendar, and the setting of the case for trial in that department. We have been referred to no rule of that court providing for any such notice, and certainly none is required to be given by the statute. (Dusy v. Prudom, 95 Cal. 646; Eltzroth v. Ryan, 91 Cal. 587.) It may be, however, that where a party to an action makes application to a department of the superior court, where the same is pending, for an order transferring the case from that department to another department of the same court, the rule would be that notice of such application should be duly served on the opposite party. But such is not the rule where the judges of the superior court, for the more convenient dispatch of business, as was the case here, or for any other reason they may deem necessary, make an order assigning or transferring cases for trial to any one or more of the several departments of such court.
The case of Cottrell v. Cottrell, 83 Cal. 457, cited by appellants, is not in conflict with these views. In that case it was held that “ to transfer a case from one department to another, and try it on the same day without any notice whatever to the opposite party, is a very abrupt proceeding, from which, in a divorce case at least, it is not improper to relieve the absent party.” That was a divorce case, and in such cases the rule is well settled that courts should be very liberal' in relieving a party from a judgment obtained against him under such circumstances, for the reason that the pub-
Upon the facts disclosed by the affidavits in this proceeding we cannot say that the court below abused its discretion in denying appellant’s motion to vacate and set aside the judgment.
It is further claimed by appellants that the judgment is erroneous because rendered in the alternative. Conceding, for the purpose of this case, that the claim is well founded, we do not think that appellants are in a position to complain, for they are not only not injured by the judgment as rendered, but it is decidedly to their advantage, for they are accorded by it the privilege of avoiding the payment of the judgment by returning the property.
The remaining errors complained of are not necessary to be considered, as they are either untenable or immaterial.
Let the judgment and order be affirmed.
Hearing in Bank denied.