I concur in the judgment of dismissal of the appeal but in fairness to the trial court and in order that the basis for its action may be more fully portrayed deem it proper to add the following observations.
It should be noted that the record supports the conclusion that the defendant deliberately engaged in a campaign for unnecessary delay. It must be remembered that the trial court found in favor of the plaintiff and every factual issue on the motions with which we are concerned must be deemed to have been resolved in favor of plaintiff.
The complaint was filed on May 21, 1942; the answer, on August 28, 1942. Trial was originally set for March 15, 1943, but on October 16, 1942, on motion of the plaintiff regularly noticed and made, the court ordered the trial date advanced to November 23, 1942. We must presume that this order was made on good cause shown and that the order so adjudicates. At the time of such order Mrs. Litvinuk was represented by attorneys Craig and Weller and Paul A. Amos, but on the same day Mr. A. P. Coviello, who was even then engaged in the trial of a criminal case, representing one of thirty-eight defendants charged with murder, a trial which he must have known would be protracted, accepted the substitution of him*46self as attorney for Mrs. Litvinuk. On November 23, 1942, the day set for trial of this action, he moved for its continuance on the ground that he was engaged in the very trial in which he was engaged when he accepted employment in the case. This move, the trial court was warranted in finding, was contemplated by him when he accepted the employment.
The record shows the following from the affidavit of Mr. Best (attorney for plaintiff) : “that affiant talked to said attorney [Coviello] in his office and over the telephone several times before the date of trial in November, 1942 and about two weeks before said date informed said attorney that he would oppose any motion of said counsel for a continuance on the date of trial for the reason among other things that he was not the original counsel, was engaged in a long trial and was so before he took the case and so forth; that at said time, said attorney stated that that was a privilege of any counsel. ...” (Italics added.)
However, on November 23d, on Mr. Coviello’s motion, over the objection of plaintiff, the trial was postponed until December 4th, the presiding judge specifically ordering at that time that on December 4th “the counsel for the defendant A. P. Coviello, was to try the case or to have the defendant represented by some other counsel who was prepared to go ahead with the trial. ’ ’ Mr. Coviello heard this ruling made. In addition thereto, on the same day, November 23, 1942, he was served by mail with notice in writing that the trial had been continued to December 4, 1942, “with the understanding that if the attorney A. P. Coviello cannot be present in person to represent the defendant at said time that he have some other attorney to represent the defendant or that the defendant have some other counsel to represent her at said time.”
Notwithstanding this notice, on December 4th Mr. Coviello, without any showing of diligence or effort to comply with the court’s order, sought a further postponement and although his motion was.at first denied, the trial was eventually continued to December 7th. On that date, the trial court having indulged defendant and her counsel two full weeks of delay, and ample opportunity to have procured other counsel, proceeded to trial. I am satisfied that there was no abuse of dis: cretion in so proceeding. However, for the reasons stated in the majority opinion, we have no occasion to pass on the merits of the trial court’s action as the appeal must be dismissed.