Miles & Sons, Inc. v. Superior Court In and For San Joaquin County

• Decision Date: 20 May 1960
• Citation: 5 Cal.Rptr. 73,181 Cal.App.2d 151
• Parties: MILES & SONS, INC., a Nevada Corporation, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR THE COUNTY OF SAN JOAQUIN, Respondent, Ernest C. Paullo et al., Real Parties in Interest. Civ. 9935.
• Court: California Court of Appeals Court of Appeals

Page 73

5 Cal.Rptr. 73

181 Cal.App.2d 151

MILES & SONS, INC., a Nevada Corporation, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR THE COUNTY OF SAN JOAQUIN, Respondent Ernest C. Paullo et al., Real Parties in Interest.

Civ. 9935.

District Court of Appeal, Third District, California.

May 20, 1960.

C. Ray Robinson, by William J. Adams, Merced, for petitioner.

William Wear Clark, Stockton, for real parties in interest.

VAN DYKE, Presiding Justice.

This is a petition praying alternatively for a writ of prohibition to restrain the respondent court from proceeding further in a pending action in which petitioner is one of the defendants or for a writ of mandate to compel the respondent court to dismiss the action as against petitioner.

The action against petitioner and others was commenced by the real parties in interest in the respondent court on December 24, 1956. Within three years thereafter petitioner was duly served with summons, but the return thereon was not made until January 4, 1960. However, on December 29, 1959, counsel for petitioner requested an extension of time in which to appear and plead, explaining that he might desire to make 'certain preliminary motions'. On December 30, 1959, counsel for petitioner prepared and forwarded the following unsigned stipulation, together with a copy thereof, to the attorney for the real parties in interest:

'Plaintiffs in the above entitled action, by and through their attorney, William Wear Clark, hereby stipulate and agree that the time which defendant, Miles & Sons, Inc., a Nevada Corporation, may appear, answer, demur or otherwise move or plead, is extended to and including January 15, 1960.

'Dated: Dec. 31, 1959

'________

'Attorney for Plaintiffs.'

The attorney for the real parties in interest signed the requested stipulation and filed it in the respondent court on January 4, 1960. On the same day petitioner noticed a motion for dismissal of the action, which motion was made and argued on January 11th and thereafter denied. Petitioner contends that it was mandatory upon the trial court to dismiss the action as the return of summons was not made until more than three years after the commencement of the action. Beckwith v. County of Los Angeles, 132 Cal.App.2d 377, 379, 282 P.2d 87.

Section 581a of the Code of Civil Procedure provides, in part:

'No action heretofore or hereafter commenced shall be further prosecuted, and no further proceedings shall be had therein, and all actions heretofore or hereafter commenced must be dismissed by the court in which the same shall have been commenced, on its own motion, or on the motion of any party interested therein, * * * unless the summons shall be served and return thereon made within three years after the commencement of said action, except where the parties have filed a stipulation in writing that the time may be extended. * * *' (Emphasis added.)

The language of the above italicized, exceptionary clause in section 581a is identical with that of section 583 of the same code. The stipulation under section 583 need not be filed nor even executed prior to the expiration of the five year petiod. In re Estate of Thatcher, 120 Cal.App.2d 811, 814, 262 P.2d 337. It is sufficient if the stipulation is filed prior to the motion to dismiss (Lewis v. Neblett, 48 Cal.2d 564, 568, 311 P.2d 489),...