FRANK I. TOBIAS, Administrator, etc., Appellant, v. FRANCIS D. ADAMS et al., Respondents, 206 Cal. 88

THE COURT. This appeal was submitted upon an order to show cause, the respondents having failed to present or file a brief. The action was one to set aside certain conveyances of real property alleged to have been made by the defendant Francis D. Adams to his wife and co-defendant Gertrude B. Adams, upon the ground that such conveyances were in fraud of the rights of the decedent, William E. Tobias, of whose estate the plaintiff is the special administrator.

The trial court, upon the issues made by the complaint and answer denying the above allegations, made findings in favor of the defendants and entered its judgment accordingly that the plaintiff take nothing by his said complaint. The appeal is from such judgment. The appellant makes two points upon this appeal. The first is that the trial court was in error in refusing to grant the plaintiff a continuance upon his motion therefor made on the morning of the trial.

The grounds of his motion were two: first, that the members of the firm of lawyers which represented the plaintiff, and who were familiar with the facts and issues in the case, were busy elsewhere; and, second, that the plaintiff had not received the five days’ notice of the date of said trial provided for in

section 594 of the Code of Civil Procedure. As to the first of these contentions, the showing made thereon was quite insufficient to justify the trial court in granting the continuance sought, and it certainly committed no abuse of its discretion in denying the same (Canty v. Pierce, 173 Cal. 205 [159 Pac. 582]; Sheldon v. Landwehr, 159 Cal. 778 [116 Pac. 44]; Handy v. Handy, 31 Cal. App. 590 [161 Pac. 21].) As to the second ground, it appears upon the face of the record to be without merit. The cause was set for hearing on December 20, 1926.

The notice thereof was served upon plaintiff’s counsel on December 14, 1926, at least six full days before the date of trial. The fact that the last of said days fell on Sunday in nowise affected the sufficiency of the notice. The next and final contention upon which the appellant relies is that the evidence does not sustain the findings and conclusions of the trial court, to the effect that the defendant Gertrude B. Adams was the owner of the property in question as her sole and separate estate, and that said property was not subject to the claims of the decedent creditor of her husband.

This question was quite fully inquired into by this court upon the respondent’s motion to dismiss this appeal, and was decided adversely to the respondent’s then contention. (Tobias v. Adams, 201 Cal. 689 [258 Pac. 588].) Notwithstanding the adverse views of the court therein expressed, the respondent has seen fit to present no brief in defense of the judgment therein criticised. A further examination of the record satisfies us as to the correctness of our former conclusions expressed in that opinion, and on the authority thereof the judgment herein is reversed.