Ellsworth v. U.S. Metals Corp.

• Court: California Court of Appeals
• Writing for the Court: VALLEE; SHINN, P. J., and WOOD
• Citation: Ellsworth v. U.S. Metals Corp., 243 P.2d 575, 110 Cal.App.2d 727 (Cal. App. 1952)
• Decision Date: 05 May 1952
• Parties: ELLSWORTH v. UNITED STATES METALS CORPORATION et al. Civ. 18883.

Page 575

243 P.2d 575

110 Cal.App.2d 727

ELLSWORTH v. UNITED STATES METALS CORPORATION et al.

Civ. 18883.

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

May 5, 1952.

Hearing Denied June 26, 1952.

John M. McMahon, Los Angeles, for appellant.

Earl Glen Whitehead, Los Angeles, for respondent.

VALLEE, Justice.

Appeal by plaintiff from an order of dismissal as to defendant United States Metals Corporation for failure to bring the action to trial within five years after the complaint was filed. Code Civ.Proc. § 583.

The action is to quiet title to mining claims. The complaint was filed August 28, 1945. Plaintiff named two defendants, United States Metals Corporation and O. K. Gilliam. The corporation was served with the summons and complaint and on September 11, 1945, filed an answer. Gilliam has not been served. Not having been brought to trial, the action was dismissed as to the corporation on October 4, 1951. No stipulation was filed extending the time within which to bring the action to trial; nor was it shown that the corporation had been absent from the state or concealed therein, or its whereabouts unknown to plaintiff and not discoverable to him upon due diligence.

The provision for dismissal after the lapse of the statutory time is mandatory, Douglas v. Superior Court, 94 Cal.App.2d 395, 398, 210 P.2d 853, unless the plaintiff brings the case within one of the exceptions named in section 583 or within one of the implied exceptions engrafted on the statute by the decisions. ¹

The motion for dismissal was determined in the trial court upon the record in this action, the record in another action between the same parties which is not part of the record on appeal, and voluminous conflicting affidavits. The conflict has to do with the efforts made by plaintiff to locate Gilliam in order to serve him with the summons and complaint, and with whether Gilliam had any interest in the property at the time the action was commenced. These questions have no bearing on whether the court should have dismissed the action. The case does not come within any of the express or implied exceptions. The sole question necessary for us to determine is whether plaintiff has established that the record before the trial court on the motion to dismiss was insufficient as a matter of law to sustain its implied finding that plaintiff could have brought the action to trial as against the corporation without the presence of Gilliam. Pacific Greyhound Lines v. Superior Court, 28 Cal.2d 61, 65, 168 P.2d 665.

There is no factual showing that plaintiff could not have brought the action to trial as against the corporation and have quieted her alleged title as against it without the presence of Gilliam. The only reference to the question in the affidavits is the conclusion that 'plaintiff cannot safely proceed to trial without service of summons and complaint first being made on him.'

The complaint as against each defendant is several. It alleges title in plaintiff and that each defendant claims a separate, not a joint, adverse interest. It does not appear that defendants have any unity of interest or claim. Independent relief is sought against each. Plaintiff could have sued the corporation alone or have brought separate actions against the corporation and Gilliam. No reason appears from the face of the complaint or from the answer of the corporation why plaintiff could not have brought the action to trial as against the corporation. In Rauer v. Hertweck, 175 Cal. 278, 283-284, 165 P. 946, it was held that in a quiet title action against two defendants a separate judgment could be rendered against one of them. Gilliam was not concerned with, nor a necessary party to, a determination of the issue of title as joined between plaintiff and the corporation. See Bell v. Adams, 150 Cal. 772, 774, 90 P. 118; Cole v. Roebling Construction Co., 156 Cal. 443, 447-449, 105 P. 255; Bell v. Staacke, 159 Cal. 193, 195-196, 115 P. 221; Rocca v. Steinmetz, 189 Cal. 426, 208 P. 964; Trans-Pacific Trading Co. v. Patsy Frock & Romper Co., 189 Cal. 509, 513, 209 P. 357; McNeely v. Superior Court, 36 Cal.App. 602, 173 P. 102; Corbin v. Howard, 61 Cal.App. 715, 718, 215 P. 920; Huntoon v. Southern Trust & Commerce Bank, 107 Cal.App. 121, 130-131, 290 P. 86.

The general rule is that in a civil action against two or more defendants the trial court has discretion to order separate trials as between the plaintiff and separate defendants. Caldwell v. Regents of University, 35 Cal.App. 639, 170 P. 666, an action to quiet title; McArthur v. Shaffer, 59 Cal.App.2d 724, 727 139 P.2d 959; Hahn v. Walter, 60 Cal.App.2d 837, 839, 141 P.2d 925; 64 C.J. 37, § 8. 'In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment is proper.' Code Civ.Proc. § 579. Even when the action is against two or more defendants jointly liable on a contract, and the summons is served on one or more of them but not all of them, the plaintiff may proceed against the defendants served in the same manner as if they were the only defendants. Code Civ. Proc. § 414.

A notice of the pendency of this action was recorded in Mono County where the...