subdivision of sections,39 of possession by a city of its public lands,40 and of the streets of San Francisco and of the directions in which they run.41 Courts will not take judicial notice of the location of lands designated simply by name, or by reference to a private survey. Books of account when properly kept are competent evidence to prove the delivery of the goods therein charged, when the nature of the subject is such as not to render better evidence attainable. 43 The jury are at liberty to use their own judgment in matters of handwriting.44 The opinion of medical experts as to the value of medical services is not conclusive; such opinion is not to be substituted for the common sense of the jury, and such opinion is to be viewed with scrutiny and much caution.45 The court must determine whether a witness is an expert in respect to matters concerning which his opinion is asked.46 A witness called as an expert should be examined, and if it be desired by the opposite party, cross-examined, to show whether the witness was competent to testify as an expert before he is permitted to testify as to his opinion.47 If a writing on its face is a complete expression of the agreement of parties, parol evidence is not admissible to add another term to the agreement,48 except fraud or mistake be alleged, or the action be one to reform the contract. The testimony of a witness which tends to contradict or limit the operation of deeds in evidence is inadmissible.49 In an action at law, parol evidence is not admissible to contradict or vary the terms of a written instrument, the instrument can only be reformed or corrected in an action in equity.50 39. Campbell v. West, 86 Cal. 197. 40. Labory v. Los Angeles, 97 Cal. 270. 41. Williams v. Savings and Loan Society, 97 Cal. 122. 42. Campbell v. West, 86 Cal. 197. 43. Severance v. Lombardo, 17 Cal. 57. 44. Haight v. Vallet, 89 Cal. 245. When parties reduce their agreement to writing, the writing supersedes all other understandings or agreements between the parties on that subject.51 Parol evidence of fraud or mistake in respect to a written instrument is always admissible.52 A judgment not suspended by an appeal is evidence of the existence of facts found to exist by such judgment on the trial of a subsequent action between the same parties in interest and in which there were in issue the same facts, although the time to appeal from such former judgment had not expired.53 A different rule as to the admission of such judgment seems to have been declared by the Supreme Court in the estate of Blythe, 99 Cal. 472. 51. Smith v. Taylor, 82 Cal. 533; Beall v. Fisher, 95 Cal. 568. 53. Cook v. Rice, 91 Cal. 664. CHAPTER XXVIII. OF THE POSTPONEMENT OF TRIALS. The clerk of a court must enter causes upon the calendar of the court according to the date of the issue. Either party may bring an issue to trial or to a hearing, and in the absence of the adverse party, unless the court, for good cause shown, otherwise direct, may proceed with his case, and take a dismissal of the action or a verdict or judgment, as the case may require.1 A motion to postpone a trial on the ground of the absence of evidence, except by consent of the parties, can only be made upon an affidavit showing the materiality of the evidence. expected to be obtained and that due diligence has been used to procure it. A trial shall be postponed when it appears to the court that the attorney of record, a party to the action, or a principal witness, is actually engaged in attendance upon a session of the legislature of the state, as a member thereof. The court may require the moving party, where application is made on account of the absence of a material witness to state upon affidavit the evidence which he expects to obtain; and if the adverse party thereupon admits that such evidence would be given, and that it be considered as actually given on the trial, or offered and overruled as improper, the trial must not be postponed.2 The party obtaining the postponement of a trial in a court of record, must, if required by the adverse party consent that the testimony of any witness of such adverse party, who is in attendance, be then taken by deposition before a judge or clerk of the court in which the case is pending, or before such notary public 1. Code of Civil Procedure, 593, 594. BUDD--12 as the court may indicate which must accordingly be done; and the testimony so taken, may be read on the trial of the action, with the same effect and subject to the same objections as if the witness was produced.3 Trial courts usually have rules which prescribe the law and motion days of such courts, at which issues of law will be tried, and motions made; and which prescribe the times, when orders will be made setting for trial cases in which matters of fact are at issue. The party who claims to be surprised must move for a continuance at the earliest practicable period.4 The pending of an action is good ground for the continuance of the trial of a later action between the same parties involving the same cause of action, until the former action is finally determined.5 The unexpected absence of counsel of a party to an action, by reason of sickness of members of his family is a good ground of continuance until the party, by reasonable diligence, could procure the services of other counsel.6 If an action be commenced in a state court to recover lands claimed under a patent from the United States and an action is pending in a federal court to have such patent declared fraudulent and to set the same aside, the state court is justified in making an order continuing the trial of the action in the state court for a reasonable time, to abide the determination of the suit in the federal court.7 A court should not proceed to try an action before the issues are fully made up.8 The court may deny an application for a continuance made on the ground of the absence of material witnesses, when the affidavit on which the application is based does not state the names of the witnesses, nor what the applicant expects to prove by them." The affidavit on an application for a continuance should show 3. Code of Civil Procedure, Sec. 596. 4. McLear v. Hapgood, 85 Cal. 557. 5. Brown v. Campbell, 100 Cal. 647. 6. Thompson v. Thornton, 41 Cal. 628. 7. Rose v. Superior Court, 65 Cal. 570. 8. Friedlander v. S. G. & S. M. Co., 61 Cal. 116. 9. Carey v. Petroleum Co., 33 Cal. 697. the materiality of the evidence on account of the absence of which the application is made, and that due diligence has been used to obtain it.1 10 When the affidavit on which an application for a continuance on the ground of the absence of a witness, does not show where the witness is, nor that his testimony is procurable within a reasonable time, such application may be denied.11 If a witness be a non-resident of the county in which the action is tried, the promise of the witness to be present at the trial, is no excuse for a failure to take the deposition of such witness.12 When an application is made to a court or referee to postpone a trial, the payment of costs occasioned by the postponement may be imposed, in the discretion of the court or referee, as a condition of granting the continuance. 13 It is the duty of a party to an action or his attorney, to watch the progress of an action to which he is a party.14 A party to an action has the right to be present at the trial of the action; and unless his absence is voluntary and negligent without reasonable excuse, a continuance should be granted to enable him to be present at the trial.15 10. Kern Valley Bank v. Chester, 55 Cal. 49; Storch v. McCain, 85 Cal. 304. 11. Harper v. Lamping, 33 Cal. 641. 12. Lightner v. Mensel, 35 Cal. 452. 13. Code of Civil Procedure, Sec. 1029; Baumberger v. Arff, 96 Cal. 261; Elzroth v. Ryan, 91 Cal. 588. 14. Elzroth v. Ryan. 91 Cal. 584. 15. Jaffe v. Lilienthal, 101 Cal. 175. |