Giorgetti v. Peccole

• Decision Date: 06 March 1952
• Docket Number: No. 3685,3685
• Citation: Giorgetti v. Peccole, 241 P.2d 199, 69 Nev. 76 (Nev. 1952)
• Parties: GIORGETTI v. PECCOLE.
• Court: Nevada Supreme Court

Page 199

241 P.2d 199

69 Nev. 76

GIORGETTI v. PECCOLE.

No. 3685.

Supreme Court of Nevada.

March 6, 1952.

Rehearing Denied April 1, 1952.

Taylor & Gubler, Jones, Wiener & Jones, all of Las Vegas, for appellant.

George E. Franklin, Jr., Las Vegas, for respondent.

EATHER, Justice.

This is an appeal by defendant Emelio Giorgetti from the judgment and from an order denying his motion for a new trial.

The sole allegations of the complaint were: 'That on or about the 8th day of March, 1950, the defendant became indebted to the plaintiff in the sum of Eighteen Thousand Three Hundred Thirty Three Dollars and Thirty Three Cents ($18,333.33), for money had and received by said defendant for the use and benefit of the plaintiff; that no part of said sum of $18,333.33 has been paid, although plaintiff has demanded same from said defendant.' Issue was joined by general denial.

In support of the appeal defendant assigns six matters of error, the second of which is that 'The trial court committed error in its refusal to grant defendant's motion for continuance, and that for this error the judgment should be reversed.' We agree with this contention, and will therefore confine the discussion to this point.

When the case was called for trial, counsel for the defendant moved for a continuance of the trial, and filed on behalf of his client a 'Notice of Motion for Continuance', which notice specified: 'The said motion will be made and based upon the ground that the defendant is unable to attend the said trial because of illness.' The affidavit attached to the 'Notice of Motion for Continuance' stated:

'V. Gray Gubler, being first duly sworn according to law, deposes and says:

'That he is one of the attorneys for the defendant in the above entitled action; that said defendant, Emelio Giorgetti, telephoned affiant Monday evening, May 14, 1951, from Mills Memorial Hospital, San Mateo, California, and advised affiant that he, Emelio Giorgetti, flew to California Sunday, May 13, 1951, for medical examination and treatment by his doctor, Harry E. Mason, M.D., of Redwood City, California who thereupon placed him, Emelio Giorgetti, in Mills Memorial Hospital, San Mateo, California, for emergency surgery; that Mr. Giorgetti further advised that said emergency surgery was scheduled to be performed this date, Tuesday May 15, 1951, and that he had been advised by his doctor that it would be necessary for him to remain in the hospital ten days or thereabouts.

'That affiant advised the defendant to have his said doctor wire, confirming the fact of such hospitalization and operation, and later, last that night received a telephone call from the Las Vegas office of Western Union advising the receipt of a telegram which has since been delivered and is now in affiant's possession, as follows:

'Emelio Giorgetti is a patient in Mills Memorial Hospital, San Mateo, California. He will be operated upon May the 15th 1951. (Stop) Affidavit to follow.

Dr. Harry E. Mason.'

'That Tuesday evening, May 15, 1951, affiant received a telephone call from the defendant who advised that he had been operated on Tuesday afternoon.

'That the defendant, Emelio Giorgetti, is the only defense witness intended to be called on the trial of the above entitled action; that defendant and his attorneys can not go to trial and defend the above entitled action without defendant's being present to testify; that the deposition of the defendant could not be taken for the reason that his inability to be in attendance at the trial was not learned until said telephone call May 14, 1951; that the presence of said defendant is indispensable to a fair trial of the cause and that if continuance is granted the party will appear within a reasonable time or his testimony will be procured by deposition.

'That this application for continuance is made in good faith and not for the purpose of delay merely.

'Wherefore, affiant, on behalf of defendant and defendant's attorneys, respectfully requests that the trial setting of the above entitled action be vacated, and that the trial be later re-set to commence whatever day may be convenient to the Court and counsel and at a time sufficiently deferred to permit the attendance of the defendant. * * *'

The record of the lower court shows that on Wednesday May 16, 1951 the case of Robert Peccole, plaintiff, v. Emelio Giorgetti, defendant, came up for hearing before the court, sitting without a jury, and the following proceedings were had, as set forth in the court minutes:

'Mr. Taylor offered Motion for Continuance on behalf of defendant and moved the Court in accordance with said motion and offered in support thereof the affidavit of V. Gray Gubler, Esq., attached to said motion, and all the records and papers on file.

'No counter affidavit by Mr. Franklin.

'Argument by Mr. Franklin. Argument by Mr. Wiener.

'Thereafter, by the Court: Ordered that the Motion for Continuance be and the same is hereby denied for failure to comply with Rule XII of the Rules of the District Court.

'This time the Court proceeded with the trial of the action.'

Following the trial judgment was rendered in the sum of $18,000.

District Court Rule No XII provides as follows:

'All motions for the continuance of causes shall be made on affidavit, and, when made on the ground of absence of witnesses, the affidavit shall state:

'First--The names of the absent witnesses, and their present residence or abiding place, if known.

'Second--What diligence has been used to procure their attendance, or depositions, and the causes of a failure to procure the same.

'Third--What the affiant has been informed and believes will be the testimony of each of such absent witnesses, and whether or not...