Douglas v. Superior Court in and for Los Angeles County

• Decision Date: 02 November 1949
• Citation: 210 P.2d 853,94 Cal.App.2d 395
• Court: California Court of Appeals Court of Appeals
• Parties: . Civ. 17332. District Court of Appeal, Second District, Division 3, California

Page 853

210 P.2d 853

94 Cal.App.2d 395

DOUGLAS et al. v. SUPERIOR COURT IN AND FOR LOS ANGELES COUNTY.

Civ. 17332.

District Court of Appeal, Second District, Division 3, California.

Nov. 2, 1949.

A. Maxson Smith, Los Angeles, and Robert A. Keller, Los Angeles, for petitioners.

Harold W. Kennedy, County Counsel, and John B. Anson, Deputy County Counsel, Los Angeles, for respondent.

VALLEE, Justice.

Petitioners seek a writ of prohibition to restrain respondent court from taking any further proceedings in a divorce action entitled Edwin S. Douglas v. Fay H. Douglas, on the ground that respondent is without jurisdiction. As its return to the alternative writ heretofore issued, respondent has demurred to the petition on the ground it does not state facts sufficient to justify the issuance of the writ. The question presented is one of law alone. The defendant in the divorce action filed a cross-complaint. The basis of the claim of want of jurisdiction is that the action was not brought to trial within five years after the filing of the cross-complaint.

Petitioners are named as cross-defendants in the supplemental cross-complaint to be referred to.

The relevant dates are these:

April 28, 1944--Complaint filed.

June 1, 1944--Answer and cross-complaint filed, naming plaintiff and petitioner Edwin S. Douglas, Jr. as cross-defendants.

March 21, 1946--Supplemental cross-complaint filed by leave of court, naming petitioners Grace Kunkle and Telegraph Delivery Service, a corporation, as cross-defendants in addition to plaintiff and petitioner Edwin S. Douglas, Jr.

June 28, 1949--Cause came on for trial. Petitioners moved for dismissal of cross-complaint and all matters supplemental thereto under Code of Civil Procedure, section 583.

July 5, 1949--Motion to dismiss cross-complaint and all matters supplemental thereto denied.

July 5, 1949--Court on its own motion dismissed the action of the plaintiff.

July 7, 19--Cause again came on for trial. Petitioners objected to further proceedings on the ground the court was without jurisdiction under Code of Civil Procedure, section 583. Objection overruled. Petitioners moved to dismiss the action of defendant and cross-complaint. Court dismissed cross-complaint and ordered cause to trial on supplemental cross-complaint. Petitioners again objected to court proceeding. Objection overruled.

July 8, 1949--Cause submitted.

July 25, 1949--Mistrial declared.

Code of Civil Procedure, section 583, in part, provides: '* * * Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced * * * unless such action is brought to trial within five years after the plaintiff has filed his action, except where the parties have filed a stipulation in writing that the time may be extended and except where it be shown that the defendant has been absent from the State or concealed therein and his whereabouts unknown to plaintiff and not discoverable to said plaintiff upon due diligence, in which event said period of absence or concealment shall not be a part of said five-year period. * * *'

The parties did not enter into or file a stipulation in writing that the five-year period provided by section 583 might be extended and it was not shown that any party to the action had been absent from the state or concealed therein, or his whereabouts unknown to the other, or not discoverable to the other party upon due diligence.

The provision for dismissal after the lapse of the statutory time is mandatory. Superior Oil Co. v. Superior Court, 6 Cal.2d 113, 116, 56 P.2d 950; Meier v. Superior Court, 55 Cal.App.2d 675, 131 P.2d 554.

Where a cross-complaint is filed there are two simultaneous actions pending between the parties wherein each is at the same time both a plaintiff and a defendant. The issues joined upon a cross-complaint are completely severable from the issues upon the original complaint and answer. Pacific Finance Corp. v. Superior Court, 219 Cal. 179, 182, 25 P.2d 983, 90 A.L.R. 384; Schrader v. Neville, 34 Cal.2d 115, 207 P.2d 1059; Lori, Ltd. v. Wolfe, 85 Cal.App.2d 54, 61, 192 P.2d 112; 22 Cal.L.Rev. 695; Anno. 90 A.L.R. 387. It is settled that the statutory period commences to run from the...