The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1892-08-20
POINTS FOR LAWYERS.
Notice Of the Setting of a Case for
Trial Is Unnecessary.
The s upreme Court UphoIds Fresno
Judge in His Position on
This Point.

A decision of the Supreme Court was
filed lin Deputy Clerk Govan's Office yes
terday in the case of Dusy VS.. Prudom
ct al. (appellants). The action was to
forSclose the lien of material man, and
was commenced and determined in the
Superior Court of Fresno County.
The defendants, Frank J. and Charles
Prudom, appeared and filed an answer to
the complaint on April 20, 1891. The case
was tried on November t, 1891, and de-
cree in favor of the plaintiff was entered
on the same day. The decree recites
chat the defendants failed 70 appear at the
trial Of the cause. On November Is, 1891,
the defendants gave notice Of an applica-
ton to set aside the judgment, on the
ground that it was taken against them
through their mistake, inadvertence and
excusabIe neglect.
In support of their motion they fled an
affidavit setting forth that neither they
nor their attorney had any notice Of the
TACT that the case had been set for trial
until after the entry of the Judgment;
that they relied upon the belief that they
were entitled 10 notice that the case had
been set for trial. being non-residents of
the county in which the action was pend
ing; that the rules of the court specified
no time Tor the calling OF the calendar
and the setting of the cases for trial; that
III August, 1891, defendants attorney
sent a letter to the attorneys of plaintiff at
Fresno and requested them to inform him
as soon As the cause was set and OF the
time when it would he tried. The defend
ants anu their attorney believed that such
request would be complied with, and that
no advantage would be taken Of their abb
seuce. The record does not show how
long the case had been set for trial prior
10 November 4th.
The Supreme Court SAYS: ''We cannot
say that the court abused its discretion in
denying the motion to vacate the ludg-
5ueut. IN Eltzroth VS.. Ryan (9l Cal. $50 we
held hat no notice OF the setting of a case
Tor trial IS required by statute; that par
ties 10 an action, and their attorneys,
whether residents or non-residents Of the
county where the case is pending, must
watch It's progress, and are charged with
notice OF the fact that it has been set tor
trial. Ii IS true, IN that case it appeared
that the rules of the Superior Court ti&e
day Tor the calling of the calendar. They
provided that either party might, with
out notice, have any case set down for
trial, and that all the parties would be
deemed to have notice of the fact; but
that circumstance is immaterial. a party
Is bound TO know the rules ola trial court.
IF they Tx a day for setting causes for
Il they do not, he must govern himself
accordingly, and learn from the proceed
.ngS Of the court when his case is to be
heard. This rule may work hardship in
some cases, and the court below should
be liberal in relieving parties from judg-
nGntS taken against them where they
have acted without negligence and with
out actual notice Of the time fixed for the
trial; but, ordinarily, a party will have
no difficulty in aScertaining the day fixed
for the trial. a request to the clerk, or
the attorneys of his adversary, for notice
OF the fact will rarely be disregarded.
There is nothing in the record to show
that either the clerk or the attorney Tor
the plaintiff promised to notify defend
ants. If such a promise had been made
and relied on, the facts would present q
cogent reason Tor setting aside the judg
mcnt taken against them. The rule
stated is announcement and troublesome to
nonresident litigants; but there is little
danger that the results which counsel for
appellants apprehGnds will follow its en-
1Orcement. Parties will not be forced to
trial without reasonable opportunity to
prepare therefor.
IF a case has been set for trial at an
unreasOnably early day, and by reason
thereof a party has been unable to be
present or TO prepare tor trial, the court
would abuse its discretion in refusing a
continuance. or in refusing to set aside q
judgment taken against him because Of
such hasty action.
1T is claimed that the Judgment should
be reversed, because it directs the sale of
the land described in the complaint with
out adjudglng that IL was all necessary for
the convenient use and occupation OF the
building. In answer to this contention it
IS sufficient TO say that the complaint
alleged that all of said land is necessary
for the convenient use and occupation Of
said building,' and the court found this
allegation to be true. 1t was not neces-
sary to repeat the statement in the judg-
ment.
1T is also claimed that the judgment is
erroneous, because it fails to adjudge that
at the commencement Of the action the
land belonged to the person who caused
the building to be constructed, or that it
was erected with his knowledge; but
here again the appellants overlook the
allegation Of the complaint and the find
ings of the court. 1t is alleged in the
complaint that Francis J. Prudom at
whose instance the building was erected.
was at all times mentioned as the owner
and entitled TO possession OF the property
and that the other defendants claim TO
have some interest therein, but the same
is subsequent to the lien of the plaintiff
These allegations We're denied, but the
court found they were true. The iudg-
ment is affirmed
ANOTHER MECHANICS LIEN CASE.
The case of Sachse VS.. Auburn ct al.
(appellantsl, also from Fresno, was an
action To foreclose a mechanics lien. The
case differed from that of busy VS.. Pru-
dom in one material respect only. There
is neither an allegation nor asfinding that
all OF the land which the decree directs to
be sold is necessary for the convenient
use and occupation of the building.
The Supreme Court quotes several
cases upon which the appellant relied,
but finds nothing IN the record of them to
reverse the judgment of the lower court
which IS also affirmed.
ALLEGED FORGERY.