Katleman v. Katleman

Decision Date23 November 1959
Citation175 Cal.App.2d 493,346 P.2d 218
CourtCalifornia Court of Appeals Court of Appeals
PartiesMary KATLEMAN, Plaintiff and Appellant, v. Liberty KATLEMAN and The First National Bank of Nevada, Co-Administrators of the Estate of Jacob Katleman, also known as Jake Katleman, Deceased, Defendants and Respondents. Civ. 23197.

Joseph R. Bailey, Sepulveda, Leonard J. Meyberg, Los Angeles, for appellant.

Abe Richman, Los Angeles, for respondents.

PARKER WOOD, Presiding Justice.

On motion of defendant the action was dismissed, pursuant to section 583 of the Code of Civil Procedure, on the ground that the action had not been brought to trial within 5 years after it was filed. Plaintiff appeals from the order and judgment of dismissal.

Plaintiff contends that the action was brought to trial within 5 years after it was filed.

The action was filed in Los Angeles County on December 8, 1950. Some of the allegations of the complaint were that the plaintiff and Jacob Katleman, now deceased, were divorced in Nevada on March 1, 1950; the decree of divorce approved a property settlement agreement between the parties; Jacob Katleman died on June 15, 1950; the plaintiff herein filed a creditor's claim in the (probate) proceedings in the estate of said deceased, a copy of which claim is attached to the complaint; about November 10, 1950, the administrators of the estate rejected 'plaintiff's claim for that share of community property of deceased and plaintiff herein as she may be entitled to,' which community property may not have been disclosed or included in the property settlement; plaintiff alleges on information and belief that there is community property which was not disclosed to plaintiff when the property settlement agreement was made. The prayer of the complaint was that defendants be required to account for plaintiff's share of the community property, and that defendants be ordered to approve her creditor's claim with reference to her share of the community property.

Defendants (administrators) answered the complaint on April 6, 1951. They alleged, in part, that they did not have any community property of the deceased which was not properly revealed to plaintiff when the property settlement agreement was made; that if any of the co-defendants have any additional community property, then the answering defendants admit that plaintiff would be entitled to a reasonable division of the community property so disclosed.

Upon motion of defendants (administrators), the action was set for trial on April 4, 1955, in Department 61, as a short cause matter. On April 4, 1955, when the case was called for trial in Department 61 by Judge Wolfson, counsel for each party answered 'Ready.' Then the counsel for each party made a statement regarding the nature of the case. Counsel for plaintiff said that plaintiff wanted the court to rule 'that the claim is good.' Counsel for plaintiff also said that the action was brought so that when, as, and if community property was discovered, plaintiff would be entitled to one-half of it. Plaintiff made a motion for judgment on the pleadings. The attorneys for the parties presented oral arguments with reference to the motion. The arguments, and the questions and comments of the judge, comprised approximately 6 pages of the reporter's transcript. On that day (April 4) the motion was submitted for decision. The minutes of that proceeding recite: 'Cause called, argued and submitted.' Thereafter briefs were filed by the parties. On April 20, 1955, the motion for judgment on the pleadings was 'denied, without prejudice.'

On January 5, 1956, the cause was transferred from Department 1 (calendar department) to Department 29, where Judge Palmer was presiding. (Statements, made before Judge Palmer, were to the effect that after Judge Wolfson had denied the motion for judgment on the pleadings he assigned the case 'BACK' TO DEPARTMENT 1 BECAUSE THE CASE COULD Not be tried Within one hour in Judge Wolfson's department, which was a department for the trial of cases which could be tried within an hour. It also appears from such statements of counsel for plaintiff that, within a few days after the case had been so re-transferred to Department 1, counsel for plaintiff filed in Department 1 a memorandum for re-setting the case for trial.) When the case was called in Judge Palmer's department, counsel for plaintiff made statements (covering about 8 pages of the reporter's transcript) regarding the nature of the case and the relief plaintiff was seeking. Then counsel for defendant made a motion, under section 583 of the Code of Civil Procedure, for dismissal of the action because it had not been brought to trial within 5 years after it was filed. Thereupon a discussion ensued among the attorneys and judge (covering about 12 pages of the transcript) regarding the proceedings in Judge Wolfson's department. Judge Palmer said, among other things, that the case came on for trial within the 5-year period in Judge Wolfson's department and plaintiff made a motion for judgment on the pleadings, and the motion had been denied. Judge Palmer also said that there was nothing in the minutes of the case to show that Judge Wolfson had sent the case back to the calendar department, or that he had declared a mistrial, or that he had deprived himself of jurisdiction over the trial, and that as far as the minutes show 'this case is still on trial in his [Judge Wolfson's] department.' Thereupon Judge Palmer...

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6 cases
  • Bruns v. E–commerce Exch. Inc.
    • United States
    • United States State Supreme Court (California)
    • 28 février 2011
    ...ready for trial, and proceedings begin, even if the proceeding is a motion for judgment on the pleadings. ( Katleman v. Katleman (1959) 175 Cal.App.2d 493, 496–497, 346 P.2d 218.) In an action tried to a jury, the action is brought to trial when the jury is impaneled and sworn. ( Hartman v.......
  • Bella Vista Development Co. v. Superior Court In and For Marin County
    • United States
    • California Court of Appeals
    • 20 décembre 1963
    ...was 'brought to trial' within the rationale of Clements v. Ragghianti (1957) 155 Cal.App.2d 188, 317 P.2d 706 and Katleman v. Katleman (1959) 175 Cal.App.2d 493, 346 P.2d 218. In essence their argument is that the impaneling of a jury or the swearing of a witness is not an indispensable fac......
  • Howard Jarvis Taxpayers Assn. v. Dep't of Forestry
    • United States
    • California Court of Appeals
    • 15 septembre 2020
    ...they are ready for trial, and proceedings begin, even if the proceeding is a motion for judgment on the pleadings. (Katleman v. Katleman (1959) 175 Cal.App.2d 493, 496-497.) In an action tried to a jury, the action is brought to trial when the jury is impaneled and sworn. (Hartman v. Santam......
  • Hendrix v. Hendrix
    • United States
    • California Court of Appeals
    • 29 août 1985
    ...from both Clements v. Ragghianti (1957) 155 Cal.App.2d 188, 317 P.2d 706, which involved a motion for nonsuit, and Katleman v. Katleman (1959) 175 Cal.App.2d 493, 346 P.2d 218, which involved a motion for judgment on the pleadings. Both cases were actually called for trial and counsel had m......
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