— I dissent from the judg*180ment, and from so much of the foregoing opinion as holds that the action of the court helow in denying the motions of defendant for a continuance was not an abuse of discretion.
The defendant is a non-resident of the state, and her answer was filed October 15, 1889, and on the 25th of that month the court, on motion of plaintiff, and against the objection of defendant, set the case for trial on December 2, 1889; and afterwards the time for trial was continued by consent until December 6, 1889, without prejudice to the right of defendant to move for a further continuance. Upon that day the defendant moved for a continuance of the case until January 15, 1890. The motion was upon the ground that depositions of certain witnesses had not been returned, and also for the alleged reason that defendant was ill at Kansas City, Missouri, and unable to come to San Francisco without endangering her prospects for recovery. This motion was supported by the affidavit of one of her attorneys, which stated, among other things, “ that affiant is further informed by telegrams received from defendant on the twenty-third, twenty-sixth, and thirtieth days of November, 1889, and also from affidavits of Dr. J. C. Rogers, hereto attached, and affiant believes, and thereupon states, that defendant is now ill at Kansas City, Missouri, and unable to travel without danger to her health.” Accompanying this was the affidavit of defendant herself and her physician, to the same effect. Many telegrams from defendant to her attorney were also produced. I am unable to find anything in the record which directly contradicts the facts stated in these affidavits in regard to the state of defendant’s health. That which comes the nearest doing so is found in the statement or affidavit of plaintiff’s father, wherein it is said: .“I am informed and believe that she is now performing as an opera bouffe artist with a company, and has been doing so for many months, and is not too sick to come here or travel.” Manifestly, this is not an assertion that the defendant was not in fact sick, as stated in the affidavits of herself *181and physician; but it is argued that the telegrams dated at' different places show that she was traveling with her company, and therefore that she was not sick. These telegrams certainly show that she had not severed her connection with the company, and that she was able to travel between the places, but it does not necessarily follow, because she did this, that it would have been prudent for her to attempt the longer overland journey. The motion for a continuance until January 15th was denied, and upon the next day the defendant moved for a continuance for one week. The motion was made upon the same affidavits, and additional telegrams and a letter from defendant. One telegram was dated upon the previous day, December 6th, and is as follows: “ Allow sufficient time for traveling. Last notice too short. Fight for continuance. Telegraph early.” The letter was dated December 2, 1889, and was addressed to her attorney. In it she said: “ I am very anxious to hear definitely about the trial; I am unable to take so long a journey alone at present. I have worried myself ill, until nervous prostration got the better of me. I am also suffering from rheumatism. I must give notice this week to the company, if I intend to remain with them and open January 13th in San Francisco. I can’t put them off in this matter. I can’t hear from you, and every night they send for decided answer, and I am unable to decide. If I come to San Francisco, I give up my engagement in the middle of winter. You say nothing about the divorce being granted to me if I accept settlement. I have done nothing to grant a divorce, but if there is no other alternative I must.” This motion was also denied, and in so doing, as well as in its denial of the previous motion, I think the court erred. The defendant was a non-resident of the state, an actress by profession, and under engagement as such, and while it appears from the letters and telegrams to her counsel that she did not wish to break this engagement if she could avoid it, and that this was one reason why she may have desired a postponement of the trial, still, there is *182nothing in these letters and telegrams to warrant the inference that she and her counsel were acting in bad faith with the court in asking for a continuance upon the ground of the state of her health, as represented in the affidavits of herself and physician, or that such affidavits were untrue.
In actions for divorce, public policy imperatively requires that nothing should be done in haste. The public are interested in having no divorce granted except for adequate cause, and the surest way to determine whether there is good cause or not is to hear both sides. In accordance with this rule, it has always heretofore been held by this court that when an application is made to set aside a judgment of default, and for leave to answer in such an action, a more liberal rule is to be applied than in other cases, in which only private rights of property are involved. Thus in the case of Wadsworth v. Wadsworth, 81 Cal. 182,15 Am. St. Rep. 38, this court reversed the action of the lower court in refusing to set aside a default, although it was admitted that'the appellant had been guilty of such n egligence as would in an ordinary action have d eprived her of the right to such relief. The court there said: “ So far as the divorce awarded to the defendant is concerned, the motion should have been granted under the rule laid down in McBlain v. McBlain, 77 Cal. 509. In that case the court, per Paterson, J., said: The parties to the action are not the only people interested in the result thereof; the public has an interest in the result of every suit for divorce; the policy and the letter of the law concur in guarding against collusion and fraud; and it should be the aim of the court to afford the fullest possible hearing in such matters/ In the present case there seems to have been an honest desire on the part of the plaintiff to present her side of the case; and while in an ordinary action the neglect shown might be sufficient to deprive her of a right to relief, yet in this kind of case a more liberal rule should prevail.”
It is plain to my mind that if the court below had kept in view the rule as thus declared, it would not have *183denied to the absent defendant a continuance for one week, which would have afforded her an opportunity to be present and give evidence in her own defense, more especially when such motion was based upon the solemn affidavit of her counsel, in which he assured the court» upon his information and belief, “ that it was the intention of the defendant to be present in San Francisco, at said trial, on December 2, 1889, and that she was and is prevented therefrom by her said illness, and not otherwise.”
It is very apparent from all of the telegrams, letters, and affidavits submitted to the court, that the defendant desired to be present at the trial, and neither of the motions for a continuance called for any unreasonable delay, and there is nothing in this record to show that plaintiff could possibly have been injured if either of them had been granted. Under such circumstances, the refusal of the court to postpone the trial was error, and not within the limits of that judicial discretion which the law intends shall govern and restrain courts in their rulings upon such questions, and which discretion is never capricious, arbitrary, or unjust, but is always “ exercised in conformity with the spirit of the law, and in a manner to subserve, and not to impede or defeat, the ends of substantial justice.” (Bailey v. Taaffe, 29 Cal. 424.)
Whatever cause may have existed for a divorce in this case, or however unwise or unfortunate the marriage between the parties may have been in the first instance, I can find in such facts no justification for bringing on the trial against a non-resident woman, in fifty-three days after issue joined, in the face of a demand for the limited and reasonable postponement asked for by her counsel, and which motions for such purpose, it must be presumed from this record, were made in good faith. The marriage was a lawful one, and gave to the defendant rights of which she should not be deprived without full and complete opportunity for defense.
The judgment and order should be reversed.
*184Harrison, J., and Beatty, C. J., concurred in the dissenting opinion of Mr. Justice De Haven.
Rehearing denied.