Obergfell v. Obergfell

• Decision Date: 22 July 1955
• Citation: 134 Cal.App.2d 541,286 P.2d 462
• Court: California Court of Appeals Court of Appeals
• Parties: Vivian OBERGFELL, Plaintiff and Appellant, v. Ivan C. OBERGFELL, a/k/a I. C. Obergfell; E. P. Obergfell and R. S. Obergfell, as executors of the Last Will and Testament of Ruby I. Baker, Deceased, Defendants and Respondents. Marjorie O'Bryan, Intervener and Respondent. Civ. 5106.

Page 462

286 P.2d 462

134 Cal.App.2d 541

Vivian OBERGFELL, Plaintiff and Appellant, v. Ivan C. OBERGFELL, a/k/a I. C. Obergfell; E. P. Obergfell and R. S. Obergfell, as executors of the Last Will and Testament of Ruby I. Baker, Deceased, Defendants and Respondents Marjorie O'Bryan, Intervener and Respondent.

Civ. 5106.

District Court of Appeal, Fourth District, California.

July 22, 1955.

Don C. Bitler and David M. McGahey, Palm Springs, for appellant.

George R. Kirk, El Centro, for respondents.

David L. O'Bryan, Northridge, for intervener and respondent.

MUSSELL, Justice.

This is an action to quiet title and to set aside two deeds executed by plaintiff's husband (defendant Ivan C. Obergfell) conveying the property involved to his sister (defendant Ruby I. Baker).

It is alleged in the complaint that the land conveyed was the community property of plaintiff and Ivan C. Obergfell and that the conveyance were made without the consent or knowledge of plaintiff. The action was filed on January 8, 1948. Summons was issued on that date and delivered to the sheriff of Imperial county for service on the defendants. Service of the summons and complaint was never effected on defendant Ivan C. Obergfell and he has not appeared in the action. On February 13, 1948, defendant Ruby I. Baker filed an answer and cross-complaint. Discussions thereafter took place between plaintiff's attorney and counsel for Ruby I. Baker relating to amending her cross-complaint to clearly describe the property involved and concerning the taking of her deposition. However, in 1951 counsel for Ruby I. Baker died and the matter had not then been set for trial. On October 17, 1952, Ruby Baker died and thereafter R. S. Obergfell and E. P. Obergfell were appointed as executors of her will and were substituted as defendants in the action in her place and stead. Thereafter, during the summer of 1953, it was orally agreed between counsel for plaintiff and counsel for said executors that the cause should be brought to trial during the winter season, in El Centro. On September 25, 1953, counsel for the executors wrote to plaintiff's attorney stating that if it were agreeable, he would ask the court to put the case on the setting calendar for October 2nd. Plaintiff's counsel, in his reply to this letter on September 28th, agreed to the placing of the cause on the setting calendar for October 2nd, and on October 2, 1953, the attorney for the executors informed plaintiff's attorney that the trial had been set for January 19, 1954.

On January 7, 1954, the executors filed a notice of motion stating that on January 15, 1954, they would move the court to dismiss the action on the ground that it had not been brought to trial within five years as provided for by section 583 of the Code of Civil Procedure. On January 15, 1954, this motion was argued before the court and the matter was continued to January 29th to permit counsel for defendants to file counter affidavits.

On January 18, 1954, Marjorie O'Bryan, claiming to be a party in interest in the action and legatee under the will of Ruby Baker, deceased, filed a complaint in intervention alleging, among other things, that the action was barred by section 583 of the Code of Civil Procedure since it had not been brought to trial within the five-year period prescribed. On January 25, 1954, the intervener filed an amended notice of motion to dismiss the action under the provisions of said section 583 on the ground that the action had not been brought to trial within five years from the date of the filing of the complaint. This motion was noticed for hearing on January 29, 1954. The minutes of the trial court show that on January 19th (the then trial date) there were no appearances and the cause was removed to the master calendar to be reset for trial and on January 22, 1954, the cause was set for trial on March 17, 1954. The motions to dismiss were heard by the court on February 26, 1954, and submitted. On March 11, 1954, by order of the court, the motion to dismiss as to the said executors was denied and the motion as to defendant Ivan C. Obergfell was granted under the provisions of section 581a of the Code of Civil Procedure.

On March 13, 1954, the executors filed a notice of motion to set aside the order of March 11th denying their first motion to dismiss and again moved for a dismissal on the ground that the action had not been brought to trial within the five-year period as provided by section 583 of the Code of Civil Procedure. This motion was noticed for hearing on March 17, 1954, and on that date the court continued the trial date and the hearing on the motion to March 19, 1954. On that date the court heard the arguments on the motion and ordered it submitted, and further ordered that the case be removed to the master calendar to be set for trial. On April 2nd the action was again set for trial on November 1, 1954. On April 16, 1954, the trial court granted the motion to dismiss the cause as to defendant executors. Plaintiff then appealed from this order and that portion of the order entered March 11, 1954, dismissing the action as to the defendant Ivan C. Obergfell under the provisions of section 581a of the Code of Civil Procedure.

Appellant first contends that it was prejudicial error for the court to dismiss the case against the executors after entering a finding that there was a stipulation in writing waiving the benefits of section 583 of the Code of Civil Procedure and extending the time for trial beyond the statutory period. We find no error in this order of dismissal.

The trial court in its order of March 11, 1954, denying the motion to dismiss as to the executors, found that the correspondence between plaintiff's attorney and the attorney for said executors (the letters of September 25 and 28, 1953, agreeing that the cause be placed on the setting calendar for October 2, 1953, and the letter of October 2, 1953, advising plaintiff's attorney that the case had been set for trial on January 19, 1954) constituted a valid stipulation waiving the provisions of section 583 of the Code of Civil Procedure and setting the cause for trial beyond the five-year period. However, the action was not tried on January 19, 1954, the date agreed upon in the stipulation and on that date there were no appearances by the parties. The court then removed the cause to the master calendar to be reset for trial. There is nothing in the record to indicate that the parties stipulated to a trial of the action at a date subsequent to January 19, 1954, or that the executors waived their right to a dismissal when the matter was not brought to trial on that date. Therefore, on March 13, 1954, the motion to dismiss made by the executors was not subject to the objection that they had waived their right to a dismissal by written stipulation, or otherwise.

In Hunt v. United Artists Studio, 79 Cal.App.2d 619, 180 P.2d 460, 463, the question for decision was whether the court abused its discretion in dismissing the action pursuant to section 583 of the Code of Civil Procedure after its pendency for six years and nine months by reason of settings and continuances of the cause with the respondent's consent, both before and after the expiration of the five-year period, and finally in permitting the case to go off calendar. The action was filed May 10, 1939, and the only stipulation for a continuance...