Hillsdale Builders Supply Co. v. Eichler
| Decision Date | 05 February 1952 |
| Citation | 109 Cal.App.2d 117,240 P.2d 343 |
| Court | California Court of Appeals Court of Appeals |
| Parties | HILLSDALE BUILDERS SUPPLY CO. v. EICHLER et al. Civ. 14849. |
Waldier & Truce, San Carlos, Marvin J. Colangelo, San Carlos, of counsel, for appellant.
Cushing, Cullinan, Duniway & Gorrill, San Francisco, for respondents.
On this appeal from an order dismissing the action for want of prosecution the only question presented is whether the trial court abused its discretion in making the order. The action was commenced on May 13, 1948, in a complaint against Eichler and several John Doe defendants alleging an oral promise of the defendants to answer for the debt of the corporate defendant Gamel, Inc. On June 30, 1948, the court sustained defendants' demurrer to this complaint. On July 15, 1950, an amended complaint was filed naming two corporate defendants which were alleged to have obtained the assets of Gamel, Inc., by successive transfers on which theory plaintiff sought to bind them on the antecedent oral promise of Eichler to answer for the debt of Gamel, Inc. To this amended complaint the defendants demurred and moved to strike at the same time the motion to dismiss was made. Action was taken on the motion to dismiss only.
Defendants' motion was based on section 583 of the Code of Civil Procedure which reads in part: 'The court may in its descretion dismiss any action for want of prosecution on motion of the defendant and after due notice to the plaintiff, whenever plaintiff has failed for two years after action is filed to bring such action to trial * * *'. The cases are uniform in holding that when the trial court dismisses an action under this section the 'discretion' mentioned therein is the discretion of that court, and not that of a reviewing court. It is equally true that the action of the trial court will not be disturbed except on a showing of a manifest abuse of such discretion. Grass v. Rindge Co., 84 Cal.App. 750, 763, 258 P. 673; Steinbauer v. Bondesen, 125 Cal.App. 419, 426-427, 14 P.2d 106; Burbank v. Continental Life Ins. Co., 2 Cal.App.2d 664, 667, 38 P.2d 451; Simonini v. Jay Dee Leather Products Co., 85 Cal.App.2d 265, 268, 193 P.2d 53.
The only excuse for the delay of more than two years in filing the amended complaint is that plaintiff's counsel was engaged in research to determine the liability of other corporate defendants. This appears rather facetious. The new parties were...
To continue reading
Request your trial
-
Diverco Constructors, Inc. v. Wilstein
...69 Cal.Rptr. 305, 442 P.2d 361 (1968); Hayashi v. Lorenz, 42 Cal.2d 848, 851, 271 P.2d 18 (1954); Hillsdale Builders Supply Co. v. Eichler, 109 Cal.App.2d 117, 118, 240 P.2d 343 (1952); Grass v. Rindge Co., 84 Cal.App. 750, 763, 258 P. 673 (1927). The burden is upon the appellant to show an......
-
Bonelli v. Chandler
...within the broad discretion of the trial court and it will be disturbed only in cases of manifest abuse. Hillsdale Builders Supply Co. v. Eichler, 109 Cal.App.2d 117, 118, 240 P.2d 343; Hayashi v. Lorenz, 42 Cal.2d 848, 851, 271 P.2d 18. This discretion 'is one controlled by legal principle......
-
Hiroko Kawakita Hayashi v. Lorenz
...*.' The discretion is that of the trial court, and it will be disturbed only in cases of manifest abuse. Hillsdale Builders Supply Co. v. Eichler, 109 Cal.App.2d 117, 118, 240 P.2d 343, and cases there cited. Plaintiffs have not shown any such abuse of Plaintiffs contend that because defend......
-
Price v. Grayson
...240 Cal.App.2d 935, 937, 50 Cal.Rptr. 181; Bonelli v. Chandler, 165 Cal.App.2d 267, 269, 331 P.2d 705; Hillsdale Builders Supply Co. v. Eichler, 109 Cal.App.2d 117, 118, 240 P.2d 343.) In the trial court, the burden of showing excusable delay to avoid the consequences of section 583 is on t......