Kosturos v. Municipal Court

In Kosturos v. Municipal Court (1942) 51 Cal.App.2d 700, trial had been set upon the request of the plaintiff for March 11, 1941, and notice was served on the defendants on March 5. On March 7 the defendants demanded a jury trial and had the clerk of the court set the trial for April 16, a date beyond the five-year period. However, the defendant failed to deposit the required jury fees. On March 11, the trial date as originally set, the plaintiff appeared for trial, but the defendant was not present. The court took the position that the court clerk had no authority to change the trial date previously set and continued trial until the next day. On the 12th one witness was called by the plaintiff and testified. The cause was then continued by the court to April 16, the very date set for trial by the court clerk at the defendants' request. It is difficult to understand why the court did not simply observe that having requested trial on April 16 themselves, the defendants were estopped to assert the bar of the five-year statute on or before that date. However, the rationale for the court's holding was that trial had actually commenced on April 12, the last day of the five-year period. Indeed, it had. A witness was sworn and testimony was presented to the court. The plaintiff had not requested a jury trial, and the defendants, having failed to post the required jury fees, had no absolute right to jury trial at that time, and as the court observed, the defendants may have appeared and consented to the partial trial without any request for the impanelment of a jury (51 Cal.App.2d at pp. 701-702.)