78 Wash. 223 | Wash. | 1914
This is an action to recover unpaid rent. There was a verdict and judgment in favor of the plaintiff against the defendants Toklas and wife. They have appealed.
The record discloses the following facts: On the 4th day of January, 1912, the respondent commenced an action against Harry Broh and Vera T. Broh, his wife, to recover unpaid rent upon a dwelling house, under the terms of a written lease executed by the respondent to the Brohs. The lease provides that the respondent shall have “a valid and first lien upon any and all goods, chattels or other property belonging” to the Brohs as security for the payment of the rent, and that the Brohs waive their rights to any exemptions they may have under the laws of the state. The prayér was for a money judgment for the unpaid rent, costs, and attorney’s fees, and that the judgment be decreed to be a prior lien “in and upon the furniture and household goods of the defendants” in accordance with the stipulations in the lease. On March 16 following, an amended complaint was filed adding the appellants Toklas as parties defendant. In this com
The appellants Toklas answered separately and put in issue all the material allegations of the second amended complaint in so far as it sought to charge them with fraud or liability for rent. They allege affirmatively, that the lease between the respondent and the Brohs was entered into with full knowledge on the part of the respondent that he was leasing the property to the Brohs; that the appellants boarded with the Brohs and moved their furniture into the house; that the respondent, at the time of executing the lease, knew that the appellants were to board with the Brohs and that they would use and occupy a portion of the leased premises; and that the appellants were not under any circumstances to become liable for the rent. The reply traversed the new matter in the answer.
On January 10, 1913, the'Cause was set for trial on February 10, following. On February 7, the appellants gave notice that they would move for a continuance on February 10. This motion was supported by the affidavits of Dr. Witter, the family physician of the appellants, and of Mr. Witherspoon, one of counsel for the appellants. The substance of the former affidavit is, that the appellant Mrs. Toklas was in delicate health; that it would be impossible for her to attend court if she were in Spokane; that he advised her to go to California for the benefit of her health; that a change to a warmer climate was indispensable to the restoration of her health to its normal condition; that, on the first day of February, 1913, upon his advice, she left Spokane and went to
Thereupon counsel for the appellants served notice upon the respondent and his counsel that they would renew their application for a continuance “for a time sufficient to enable them to take the deposition of Mrs. Nathan Toklas,” who was then in the city of San Francisco, upon the affidavits to which we have referred and upon the affidavit of Mr. Shaw. The latter affidavit alleges, that Vera T. Broh and Mrs. Toklas were material witnesses for the appellants; that, at the time of making the contract or lease, no one was present except Mrs. Toklas and Mrs. Broh; that it was absolutely necessary that the cause be continued to enable counsel to take their depositions in the city of San Francisco; that, without their presence or depositions, they could not proceed to trial; that there were no other persons who had any knowledge of the facts or circumstances attending the making of the lease; that, at the time of the execution of the lease, it was agreed between the respondent and Mrs. Broh that the property was being leased to the Brohs, and that a part of the furniture to be moved into the house belonged to the appellants ; that Mrs. Broh stated to the respondent that she and her husband were renting the property, and that the appellants were to live and board with them. The Brohs remained in the dwelling until January 1, 1912, when they went to, and have since remained in, the state of California. The appellant, Mrs. Toklas, on the advice of her physician,
We think upon the second showing the continuance should have been granted. Hill v. Hill, 42 Wash. 250, 84 Pac. 829; Traynor v. White, 44 Wash. 560, 87 Pac. 823; Jaffe v. Lilienthal, 101 Cal. 175, 35 Pac. 636; McMahan v. Norick, 12 Okl. 125, 69 Pac. 1047; Scott v. Whipple, 116 Ga. 211, 42 S. E. 519. It is true, as argued by the respondent, that the granting or denying of an application for a continuance rests in the sound discretion of the trial court. It is not to be overlooked, however, that, where an application is made for a continuance on the ground of the absence of a party to an action who is also a material witness in the trial of the cause, the application stands upon a different footing from an application based upon the absence of witnesses who are not parties. The cases cited support this view. As the court remarked in Jaffe v. Lilienthal, it seldom happens that a trial can be properly had in the absence of the parties to the action, where the case is to be tried upon oral testimony. It cannot be doubted that it is the right of the parties to the action to be present at the trial of their case. As the California court observed, this right may of course be waived, and should be held to be waived where the absence of the party is voluntary and under circumstances “which ought not to induce a reasonable man having a due regard for the rights and interests of others and of the public ... to absent himself.” The object of all litigation is to do justice between the parties. This could not be done in the case at bar. The record itself, aside from the affidavits supporting the application for a continuance, shows that Mrs. Broh and Mrs. Toklas were the parties charged with making the contract and charged with making the false representations. It is obvious, therefore, that the presence of one or both of these witnesses or their depositions was essential to the trial
The only case cited by the respondent which is at all in point is Puget Sound Mach. Depot v. Brown Alaska Co., 42 Wash. 681, 85 Pac. 671. In that case, a continuance was sought upon the ground that the president and principal stockholder in the appellant companies was then confined to his home in the city of New York by illness, and was unable to come to Seattle to attend the trial. The order denying the continuance was affirmed, the court saying:
“In view of the fact that this action had been pending for many months, that two or more continuances had been granted on the request of the appellants, and that they had been notified by the trial court that the hearing would certainly be proceeded with at the date to which it was last continued, and in the light of all the facts shown by the record before us we are unable to say that the trial court abused its discretion.”
It is argued that the appellants might have taken the deposition of Mrs. Toklas before she left the state. This may be true. It is apparent, however, that at that time her counsel believed that his application for a continuance for a reasonable time for her to return and be present at the trial would be granted. In view of the frequent changes in the complaints, and upon the whole record, it cannot be said that counsel for the appellants failed to exercise reasonable diligence. We think the learned trial court abused its discretion in denying the second application.
A joint judgment was entered against the appellants. It is argued that it should have been a judgment against the community only. Our statute, Rem. & Bal. Code, § 5931 (P. C. 95 § 23), provides that the expenses of the family are chargeable upon the property of both husband and wife, or either of them, and that in relation thereto they may be sued jointly or separately.
The judgment is reversed because of the denial of the second application for a continuance.
