(dissenting).
I think a plain injustice has been done in this case and that the judgment should be reversed.
With the general statement of the majority that rulings on continuances “will not be disturbed on appeal except for an abuse of discretion” I have no quarrel. But we must look realistically at the practical application of the terms “discretion” and “abuse of discretion”. Judicial discretion comes into play when there is no fixed rule to guide the judge. For where there is a hard and fast rule there would be an end- — ■ or lack of necessity, for — discretion as a rule of judgment. Discretion does not mean the indulgence of a personal or judicial whim. Nor does it mean the imposition of the arbitrary will or merely individual view of a judge.6
When being considered in appellate proceedings abuse of discretion by a trial judge does not necessarily imply improper motive, wilful purpose, prejudice, partiality or intentional wrong.7 Applying that rule to the instant case it is not necessary to find that the judge was stubborn or arbitrary. The chief test is whether the ruling was in furtherance of justice; and if its effect was to defeat justice it may be deemed an abuse of discretion.8
The rule which applies here is perhaps best stated in Nicholls v. Anders, 13 Cal.App.2d 440, 56 P.2d 1289, 1292, (quoting from Waite v. Southern Pac. Co., 192 Cal. 467, 221 P. 204), as follows: “It is also well established that it is the policy of the law to bring about a trial on the merits wherever possible, so that any doubts zvhich may exist should be resolved in favor of the application, to the end of securing a trial upon the merits(Italics supplied.)
Also peculiarly applicable here is the language of the Supreme Court in an early case9 as follows: “Courts are the mere instruments of the law, and can will nothing. * * * Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect * * * to the will of the law.”
With these principles in mind, I think the trial judge should not have forced the case to a conclusion in the absence of appellant and his counsel.
It was not of appellant’s making that the trial was not commenced until the late hour of 3 p. m. He need not have commenced it at all because there was not a full panel of jurors present and he could have declined to proceed until a full panel was available. Nevertheless, he co-operated by accepting a “short panel” and proceeding with the case. Before the day’s proceedings were over appellant’s counsel told the judge that he had made his plans to leave the city two days hence (on Thursday evening) and could not change them. (We should take judicial notice of the difficulty in obtaining traveling accommodations and the even greater difficulty of changing them at the last minute.) Counsel also told the judge that he would be required to be in the District Court the following morning. That engagement he was of course powerless to prevent. But for that engagement he could have completed the case on Wednesday. Moreover there is in the record the court’s statement that it could not resume the case on Thursday morning; so that even if appellant’s counsel had been free to finish the case on Thursday morning the court could not have heard it. Finding himself in that troublesome situation, appellant’s counsel made a fruitless effort to obtain a substitute lawyer to complete the case. Even if he had succeeded there would still be the practical and psychological disadvantage to appellant of having a new lawyer take over the case in the middle of the trial.
It seems to me that the judge should have considered the practical result of refusing a continuance and should have seen that it would deprive appellant of his day in court and would result in no trial worthy of the name. Furthermore these alternatives were open to the judge:
1. To continue the case for one week, as requested. This was refused because the judge appeared to have other cases on that day. The only other reason given was *687the expense of bringing the jury back. This means nothing because it would have cost no more to bring them back on one day than on another. Nor is there anything to the argument that the jury would be inclined to forget what they had heard; even if that were true, the disadvantage would have been to appellant, because it was he who was plaintiff below.
2. At the time of the conference in chambers the judge could have ordered a mistrial. This would have resulted in discharging the particular jury before which it had been commenced and having the case reset for trial before a new jury at some later date.
3. The trial judge could at that time have ordered an involuntary nonsuit instead of attempting to coax appellant into taking a voluntary nonsuit. This would have been tantamount to a dismissal without prejudice, with all costs against appellant, but with the important right reserved to him to re-file his case.
4. On the critical Friday morning when plaintiff’s attorney could not be there and when plaintiff was unable to secure another lawyer and did not appear at the trial (there is at least some evidence that he was ill) it was still not too late for the court to save the situation. It could then have ordered a continuance, or á mistrial, or a nonsuit. Finally, if the court felt ■that plaintiff had abandoned the case, the logical step would have been to order a dismissal for want of prosecution. Such dismissal would have carried costs against the plaintiff, and would have avoided the inherent injustice of the ex parte proceeding which resulted. But the court ignored the comparative benefits of these possible steps and adhered to its determination that the case be tried that day. That is what I think constitutes error, and demands correction here.
I am not overlooking the desirability of ■obtaining prompt disposition of cases and of protecting litigants and witnesses from unnecessary delays. But even these important considerations must give way when the alternative result is no trial at all. Contests of will power between counsel and court are always unfortunate; the contestants are not evenly matched, and the judge usually prevails.
This is not a case of mere refusal to accommodate counsel, or to extend the courtesy of selecting a day convenient to all for completion of a trial. Nor is it a case where a lawyer has merely been forced to trial before he was prepared. It is a case where the judge selected the only day when counsel could not be present as the one day when the trial must be completed.
I agree that when discretion has been really discreet and has worked no material injury, we are not called upon to referee personal disputes of this kind. The opposite is true in this case.
Grant v. Michaels, 94 Mont. 452, 23 P.2d 266.
Pettcgrew v. Pettegrew, 128 Neb. 783, 260 N.W. 287.
Hill v. Finnemore, 132 Me. 459, 172 A. 826.
Osborn v. Bank of United States, 22 U.S. 738, 866; 9 Wheat. 738, 6 L.Ed. 204.