Ordway v. Arata

• Decision Date: 11 April 1957
• Citation: 309 P.2d 919,150 Cal.App.2d 71
• Court: California Court of Appeals Court of Appeals
• Parties: Kent F. ORDWAY and Edith Ordway, Plaintiffs and Appellants, v. Mike ARATA, Jr., Defendant and Respondent. Civ. 8973.

Page 919

309 P.2d 919

150 Cal.App.2d 71

Kent F. ORDWAY and Edith Ordway, Plaintiffs and Appellants, v. Mike ARATA, Jr., Defendant and Respondent.

Civ. 8973.

District Court of Appeal, Third District, California.

April 11, 1957.

C. Ray Robinson, Merced, for appellants.

O. F. Fenstermacher, Pittsburg, for respondent.

SCHOTTKY, Justice.

This is an appeal from an order dismissing an action for want of prosecution.

On November 21, 1952, Kent F. Ordway and Edith Ordway filed an action against defendant Mike Arata, Jr., to recover the sum of $7,000 loaned to said defendant and evidenced by an instrument in writing. Summons was issued on the same day but the complaint and summons were not served upon defendant until June 27, 1955, two years, seven months and six days after the commencement of the action. On July 27, 1955, defendant filed a motion to dismiss the action for want of prosecution, and the court made an order dismissing the action on August 15, 1955. A motion to set aside the order of dismissal was denied on October 14, 1955.

Appellants make a vigorous attack upon the order of dismissal, contending that it was an abuse of discretion. They argue that the delay does not show lack of diligence but that the peculiar extenuating circumstances of the instant case clearly show excusable delay. These circumstances, as detailed in the counter-affidavits of respondent Edith Ordway and attorney Wallace W. Everett, Jr., may be summarized as follows:

Between November 21, 1952, and July, 1953, the plaintiffs attempted to ascertain the financial status of the defendant. On June 25, 1953, the plaintiffs' attorney, Wallance W. Everett, Jr., by a letter requested payment from defendant, but such letter was not answered. This fact was communicated to the plaintiffs, who informed their attorney of the illness of Kent Ordway and advised that upon his recovery he would communicate with Mr. Everett concerning further efforts at collection. Less than seven months after the action was filed Kent Ordway entered the St. Francis Hospital in San Francisco where it was discovered that he was suffering from malignant cancer. He remained in that hospital for over a month until August 14, 1953. On September 13, 1953, he re-entered that hospital and remained until October 1, 1953. From October 6 to October 16, 1953, he was hospitalized in the Pittsburg Community Hospital. On October 28, 1953, he entered the Franklin Hospital where he remained until December 18, 1953, when he was transferred back to the Pittsburg Community Hospital. He remained there until his death on January 16, 1954. Thereafter, all of the business affairs were cast upon plaintiff, Edith Ordway.

On the advice of physicians, the attorney for plaintiff, Mr. Everett, was absent from active practice from July, 1954 to November 1, 1954.

The defendant was a friend of the plaintiffs. Edith was disturbed about disrupting that friendship and at the same time believed, following the death of her husband, that she was fully protected by the timely filing of this action. Between July 16, 1954, and April of 1955, Edith believed that the defendant was having considerable financial trouble. Out of consideration for such worries of the defendant and in view of her own worries and responsibilities, Edith refrained from enforcing any harassing or disrupting collection procedures. In the early part of May, 1955, Edith asked defendant when she could expect him to commence payment. Upon receiving the evasive answer that 'He would see what he could do,' Edith promptly instructed her attorney to serve the defendant, with process, which was done.

Because the counter-affidavits of appellants were not served upon respondent's attorney until the time of the hearing of the motion, respondent was sworn and testified. His testimony was unreported but according to the respondent's brief respondent testified that the appellant Edith Ordway had, on or about April, 1949, told the respondent that he could have the money and that he could forget about it. He denied that the appellants attempted to ascertain his financial status. He testified that long before the service of summons upon him the respondent and Edith Ordway had terminated the intimate relationship and had blood existed between the parties. The respondent did not have any knowledge of the pendency of the lawsuit, either before or after receiving the letter from Mr. Everett, of the law offices of C. Ray Robinson, dated June 25, 1953. His first knowledge of the action was when he was served.

Appellants to not directly deny that there was such unreported testimony but assert: 'Even considering the recollections of the respondent as to his unreported oral testimony, the circumstances disclosed by the entire record demonstrate that the dismissal of the action was an abuse of discretion.'

The statutes relating to dismissal of action for lack of prosecution are sections 581a and 583 of the Code of Civil Procedure. Under section 581a dismissal is mandatory on request of the party against whom the delay operates if there is (1) a failure to issue summons within one year or (2) a failure to serve and make return thereon within three years. Under section 583 dismissal is mandatory upon failure to bring the action to trial within five years, and the court may (with certain exceptions not applicable here) in its discretion dismiss the action for want of prosecution whenever plaintiff has failed for two years to bring the action to trial. In addition to the statutory grounds for dismissal of actions for lack of prosecution the court has inherent power limited by sound discretion to dismiss an action for want of reasonable diligence in the prosecution thereof. Feather River Land & Mining Co. v. Paradise Irrigation Dist., 3 Cal.2d 733, 46 P.2d 147.

In the instant case, as hereinbefore set forth, the summons was not served until two years, seven months and six days after the action was filed, and the question that we must determine is whether or not we should hold that the court abused its discretion in granting the motion to dismiss.

The general rule is well expressed in Thompson v. Lester, 20 Cal.App.2d 745, at page 747, 67 P.2d 1093, at page 1094, as follows:

'The power of the court to dismiss for unreasonable delay in the service of summons is well settled. Feather River Land & Mining Co. v. Paradise Irr. Dist., 3 Cal.2d 733, 46 P.2d 147. This is without regard to the merits or demerits of the cause of action (Bell v. Solomons, 162 Cal. 105, 121 P. 377); and the order will not be disturbed unless the court's discretion has been abused. (Lieb v. Lager, 9 Cal.App.2d 324, 49 P.2d 886). A plaintiff's lack of diligence is not excused by the fact that other proceedings are pending (Kreiss v. Hotaling, 99 Cal. 383, 33 P. 1125; Watterson v. Hillside Water Co., 42 Cal.App. 364, 183 P. 592); and delays for periods approximating that in the case at bar [14 months] have been held sufficient to justify a dismissal. [Citing cases.]'

In support of their contention that the court abused its discretion in granting the motion to dismiss the action, appellants have cited several cases in which such an order was reversed. The case most strongly relied on by appellant is Jepsen v. Sherry, 99 Cal.App.2d 119, 220 P.2d 819. In that case the defendant had filed four demurrers and an answer, and after the case had been set for trial made a motion to dismiss the action for failure to prosecute on the ground that it had not been brought to trial within two years. In reversing the order of dismissal the court said at page 121 of 99 Cal.App.2d, at page 822 of 220 P.2d:

'This discretion is one controlled by legal principles and is to be exercised in accordance with the spirit of the law and with a view to subserving, rather than defeating, the ends of substantial justice. Raggio v. Southern Pacific Co., 181 Cal. 472, 185 P. 171. Each case must be decided on its own peculiar features and facts. First National Bank v. Nason, 115 Cal. 626, 47 P. 595. It is a well established policy of law to favor the avoidance of litigation by compromise. Hamilton v. Oakland School Dist., 219 Cal. 322, 26 P.2d 296. While not always controlling, this sometimes has an important bearing. In Ferris v. Wood, 144 Cal. 426, 77 P. 1037, an order of dismissal was reversed, it appearing that the debt was owed, and that the delay occurred through the plaintiff's desire to effect a compromise. The court held that an excuse for the delay reasonably appeared and that in such a matter, unlike some others, a trial judge is in no better position than an appellate court in determining whether substantial justice has been done. The court then expressed the opinion that the dismissal there involved had tended to defeat, rather than to subserve, the ends of substantial justice.

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'In most of the cases where such a dismissal has been sustained either nothing was done by the plaintiff or no valid excuse for the delay was shown, and no unusual circumstances appeared. Unreasonable delay in litigation should be avoided; but all the circumstances should be carefully considered before a plaintiff is denied relief without a hearing. While it appears here, technically, that more than two years had elapsed before the trial date and that some of the delay was probably unnecessary, the excuse for the delay is not entirely unreasonable and there are other considerations which should not be overlooked.

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'The circumstances here were unusual, all of them should be considered, and an unjust effect should not be given to this procedural rule, which is merely optional. The defendants may owe the plaintiff nothing, but under the circumstances substantial justice requires that this issue should be determined by a trial on the merits. The drastic order made is not sustained by the record before us, and an abuse of discretion clearly appears.'

Respondent in reply cites a number of cases...