Jepsen v. Sherry
| Decision Date | 24 July 1950 |
| Citation | 99 Cal.App.2d 119,220 P.2d 819 |
| Parties | JEPSEN v. SHERRY et al. Civ. 3982. |
| Court | California Court of Appeals Court of Appeals |
Hans P. Jepsen, in pro. per.
William H. Macomber, Martin & Mahedy, San Diego, for respondents.
Plaintiff commenced the instant action to recover on an alleged oral contract for labor and material furnished in connection with the construction and alteration of improvements on property owned by the defendants and to foreclose a mechanic's lien thereon. A cause of action on quantum meruit was included in the second amended complaint. The action was filed on September 14, 1946, and a judgment of dismissal for failure to prosecute was rendered by the trial court on May 26, 1949, about two years and six months after the filing of the complaint. The motion to dismiss was heard on affidavits and files and records in the action. No testimony was taken and there is no reporter's transcript. The clerk's transcript reflects the filing dates of various documents and pleadings involved, as follows:
September 14, 1946--Complaint filed.
October 11, 1946--Demurrer to complaint.
December 22, 1947--Amended complaint.
January 2, 1948--Demurrer to amended complaint.
January 23, 1948--Amended demurrer.
February 13, 1948--Amended demurrer sustained.
March 9, 1948--Second amended complaint.
March 18, 1948--Demurrer to second amended complaint.
April 7, 1948--Amended demurrer.
June 16, 1948--Answer.
July 6, 1948--Memorandum for setting case on civil active list.
July 8, 1948--Demand for jury filed by defendants.
May 20, 1949--Notice of motion to file amended answer and cross-complaint.
Demand for bill of particulars.
Notice of motion to dismiss for failure to prosecute.
May 26, 1949--Judgment of dismissal for failure to prosecute rendered.
The sole question for our determination is whether the trial court abused its discretion in dismissing the action when it had not been brought to trial for more than two years after the commencement thereof.
Two code sections are applicable:
Section 583, Code of Civil Procedure: 'The court may in its discretion 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, * * * except where the parties have filed a stipulation in writing that the time may be extended * * *.'
Section 1190, Code of Civil Procedure: '* * * and in case such proceedings be not prosecuted to trial within two years after the commencement thereof, the court may in its discretion dismiss the same for want of prosecution * * *.'
The rule is well settled that the power of a trial court to dismiss an action for failure on the part of the plaintiff to prosecute it with diligence is an inherent power which exists without the aid of statutory authority and that the provisions of section 583 of the Code of Civil Procedure and of other related sections must be read in the light of the existence of such inherent power. Simonini v. Jay Dee Leather Products Co., 85 Cal.App.2d 265, 268, 193 P.2d 53; Steen v. The City of Los Angeles, 31 Cal.2d 542, 546, 190 P.2d 937. It is also well settled that the action of the trial court in dismissing an action for failure to prosecute diligently should not be disturbed except upon a showing of clear abuse of discretion, and it is immaterial whether the trial court was acting under its inherent power or under the provisions of section 583 of the Code of Civil Procedure. Hibernia Sav. & Loan Soc. v. Lauffer, 41 Cal.App.2d 725, 729, 107 P.2d 494.
It is conceded that the present action was not brought to trial within two years after the filing of the complaint. The only affidavit in opposition to the motion to dismiss is that of the attorney for the plaintiff. It is stated therein, among other things, that on the 12th of October, 1946, the affiant was served with a demurrer filed by the defendants and prior to the hearing thereof on November 2nd, the affiant advised the defendants' attorneys that one of the points of the demurrer was good and that, therefore, the plaintiff would file an amended complaint. It is further stated that from December, 1946, to February, 1947, affiant and one of defendants' attorneys attempted to arrange a conference between the principals to the action; that the conference occurred during the month of February, at which time defendants agreed to engage an independent architect, who would go over the details of the work and make a report thereon; that the report was received in the latter part of March, 1947; that from December, 1946, to May, 1947, affiant and defendants' attorneys were hopeful that a settlement might be reached and a compromise of the litigation affected. There is no suggestion in the affidavit or in the record before us that a continuance was agreed upon or that any of the rights of the defendants to have the matter brought to trial within the statutory period were waived. The affidavit further sets forth that the demurrers were argued before the court on or about February 13, 1948 and plaintiff was then advised of the court's decision sustaining the demurrers in part and granting plaintiff leave to file an amended complaint; that plaintiff then on March 9, 1948, filed his second amended complaint, to which the defendants demurred and also filed their answer on or about June 15, 1948; that immediately thereafter a notice of motion to set the cause for trial was served and filed; and that the defendants demanded a jury trial. On information and belief the affiant averred that due to the demand for a jury having been filed and the congested and crowded condition of the trial calendar, it was impossible for the court to set the case for trial prior to May 26, 1949. In this connection it should be noted that there is no suggestion in the affidavit or in the record that the plaintiff asked for a preferential setting or endeavored in any manner to advance the trial date of the action. The affidavit does not contain facts sufficient to show an abuse of discretion on the part of the trial court in concluding that plaintiff had not prosecuted the action to trial with due diligence.
The first amended complaint was not filed until December 22, 1947, one year and three months after the filing of the action. Plaintiff attempts to account for this delay with the statement that negotiations for settlement were being carried on. There is nothing in the record to indicate that defendants waived their rights to a dismissal of the action by efforts to obtain a settlement or that they agreed to any extension of the time within which the action should be tried. The statement in the affidavit that the attorneys for the parties 'were hopeful' that a settlement could be affected is of no value as an excuse for plaintiff's failure to exercise due diligence.
In Hayward Lumber & Inv. Co. v. Greenwalt, 215 Cal. 655, 12 P.2d 445, in an action to foreclose a mechanic's lien, dismissed by the court, where two years and three months had elapsed after the institution of the action and the matter had not been brought to trial, the court held that it was the duty of the plaintiff to take measures to have demurrers determined and to use due diligence in this respect, the failure to do so being grounds for dismissal of the action.
In the instant case, the plaintiff's pleadings were subject to demurrer and the delay incident to the filing of the demurrers can in no wise be charged against the defendants. Such delays are not sufficient to stay the running of the two-year statutory period.
The motion herein was heard on the records and files in the action and on conflicting affidavits and it must be assumed that the court below found the facts to be as asserted by the moving and prevailing party. Lieb v. Lager, 9 Cal.App.2d 324, 326, 327, 49 P.2d 886.
The filing of the lien herein and the institution of foreclosure proceedings created a cloud on the title of defendants' property. They were entitled to have as speedy disposition of the action as was consistent with their own and the rights of the plaintiff.
Where, as here, the court found that plaintiff did not with reasonable promptness pursue all the steps necessary to bring the litigation to an end, he should suffer the penalty of his default. Bronger v. Polytechnic School, 60 Cal.App.2d 656, 658, 141 P.2d 480.
While we would have favored a trial on the merits, on the record before us, we are unable to hold as a matter of law that an abuse of discretion appears.
Judgment affirmed.
On Rehearing
This action was brought on September 14, 1946, to recover a balance due on an oral building contract, and to foreclose a lien on defendants' property. A cause of action on quantum meruit was included by amendment. The record shows the following proceedings: A demurrer was filed on October 11, 1946, and an amended...
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