Ross

This was an action originally brought by the plaintiffs as assignees of one W. C. Gilman to recover a balance of the purchase price of certain hogs, alleged to have been sold by Gilman to defendant. To the complaint the defendant filed an answer and counterclaim based upon allegations that the hogs sold him by Gilman were infected with cholera. He also filed a cross-complaint against the plaintiffs and the said Gilman, based upon damages, alleged to have been suffered, by reason of the communication of cholera from the hogs so purchased to other hogs already owned by him.

When the case was called for trial on April 30, 1926, at 10 o’clock A. M., the defendant was not present. His attorney made a verbal statement to the court that the wife of said defendant was seriously ill at Chino, a distance of about thirty miles from the courtroom, and for that reason defendant and cross-complainant was unable to be present. Upon objection being made to a continuance, defendant’s attorney offered both to pay “terms” if such continuance was granted, and to take the deposition in court of a witness then present, who had come some distance. The trial judge suggested that some proof be produced…