S. C. WHALEY et al., Petitioners, v. J. R. KING, Respondent, 92 Cal. 431

De Haven, J. The petitioners are residents of the county of Santa Barbara, and are 'defendants in an action pending before the respondent, a justice of the peace for San José township, county of Santa Clara, and were present in said justice’s court on July 27, 1891, the time fixed for the trial of said action. Upon that day, and more than one hour after the time fixed for the trial, the attorney for the plaintiff in the action moved for a continuance of the case.

The petition alleges “that said motion for a continuance consisted in an oral'statement that material witnesses were absent out of the county, and had not responded to letters written and telegrams sent to them,” and that no other or further showing was made by oath or affidavit of any person, nor the name of any missing witness given, or any showing of diligence, etc. Thereupon petitioners demanded that the action be dismissed, and judgment of discontinuance given. This motion was denied, and that of the plaintiff therein for a continuance granted.

The application here is for a writ of mandamus commanding the said justice of the peace to dismiss the action. It is very clear that the respondent committed an error in granting the motion for a continuance without any affidavit or other legal evidence showing the necessity therefor; but the commission of an error in ruling upon such a motion does not authorize this court to direct that the action be dismissed because of such error. If a justice of the peace should refuse to proceed with the trial of a case as required by

section 873 of the Code of Civil Procedure, the remedy would be to obtain a writ of mandate compelling him forthwith to proceed with such trial, but upon the service of such a writ the justice would still have a right to entertain a motion for a further continuance, and if sufficient cause was shown therefor in accordance with the provisions of the code, he would be justified in granting it. Application for writ denied. McFarland, J., G-aroutte, J., Sharpstein, J., and Harrison, J., concurred.