Fraser

This is an action brought to recover the sum of fifteen thousand dollars upon a rejected claim for services alleged to have been rendered decedent by plaintiff’s assignor. Upon the day set for the trial of the case plaintiff moved the court for a continuance upon the ground that plaintiff’s assignor, the real party in interest, was unable to be present and take part in the trial. Upon a hearing had, the court granted the continuance upon the condition that there be paid to defendants the sum of $120. Plaintiff refused to comply ivith this condition. He also refused to introduce any testimony “for the reason we have not any witnesses here,” and “the plaintiff’s principal witness and main party is unable to appear in court upon the showing made for continuance.” Whereupon, upon motion of defendants, the court ordered judgment of dismissal. From this judgment plaintiff has appealed, and has also appealed from the order of the court denying his motion to strike out defendants’ cost bill.

As regards the judgment, plaintiff charges that “the trial court abused its discretion and exceeded its authority in its attempt to force the plaintiff to pay to the defendants a lump sum of money…