Robertson v. Superior Court In and For Kern County

• Decision Date: 26 April 1960
• Citation: 4 Cal.Rptr. 297,180 Cal.App.2d 372
• Court: California Court of Appeals Court of Appeals
• Parties: Isadore C. ROBERTSON, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF KERN, Respondent, Joe Perkins and Maurice Garnes, minors, Real Parties in Interest. Civ. 6092.

Page 297

4 Cal.Rptr. 297

180 Cal.App.2d 372

Isadore C. ROBERTSON, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF KERN, Respondent Joe Perkins and Maurice Garnes, minors, Real Parties in Interest.

Civ. 6092.

District Court of Appeal, Fourth District, California.

April 26, 1960.

Rehearing Denied May 17, 1960.

Hearing Denied June 22, 1960.

Borton, Petrini, Conron, Brown & Condley, Bakersfield, for petitioner.

James A. Gardner, Fresno, and Baker, Palmer, Wall & Raymond, Bakersfield, for real parties in interest.

GRIFFIN, Presiding Justice.

Joe Perkins, a minor, et al., as plaintiffs, instituted an action against defendant Isadore C. Robertson in Kern County. The trial judge sustained defendant's demurrer to plaintiff's third amended complaint without leave to amend. Judgment was rendered in favor of defendant. An appeal followed. In Perkins v. Robertson, 140 Cal.App.2d 536, 295 P.2d 972, this court, on April 5, 1956, reversed the judgment with certain directions. Remittitur issued and was filed with the clerk of the superior court of that county on June 6, 1956. More than three years elapsed after said date before the action was brought to trial. On February 11, 1960, defendant moved to dismiss the action under section 583, Code of Civil Procedure, which provides:

'When in an action after judgment, an appeal has been taken and judgment reversed with cause remanded for a new trial * * * the action must be dismissed by the trial court, on motion of defendant after due notice to plaintiff, or of its own motion, unless brought to trial within three years from the date upon which remittitur is filed by the clerk of the trial court.'

On February 24, 1960, the court denied defendant's motion to dismiss and set the case for trial on March 21, 1960.

On the return to the other to show cause, plaintiffs argue the writ should be denied, claiming that section 583, supra, is not applicable because in the first instance there was no trial of the action in the ordinary sense of the word because the reversal was the result of a dismissal after sustaining a demurrer without leave to amend; that the section applies only where an appeal has been taken and the judgment has been 'reversed with cause remanded for a new trial' and does not cover the situation here presented because there never was, in the ordinary sense, a trial on an issue of fact in the first instance. Citing Perkins v. Robertson, supra, Elmhurst Packers v. Superior Court, 46 Cal.App.2d 648, 116 P.2d 487; Wyoming Pacific Oil Co. v. Preston, 50 Cal.2d 736, 740, 329 P.2d 489; Weightman v. Hadley, 138 Cal.App.2d 831, 292 P.2d 909; Harris v. Board of Education, 152 Cal.App.2d 677, 683, 313 P.2d 212; Booth v. County of Los Angeles, 69 Cal.App.2d 104, 107, 158 P.2d 401; Code Civ.Proc. sec. 656; 4 Cal.Jur.2d 588 Sec. 684.

Smith v. City of Los Angeles, 84 Cal.App.2d 297, 190 P.2d 943, hearing denied, definitely held that:

'Where a demurrer to a complaint was sustained without leave to amend and judgment was given for the defendant, and where an appellate court reversed the judgment with directions to overrule the demurrer, but did not remand the cause for a new trial, the demurrer went direct to the determination of the rights of the parties and all rights involved in the complaint, and the action was brought to 'trial' within the meaning of Code Civ.Proc., § 583, requiring the dismissal of actions not brought to trial within the time prescribed therein.'

In Carney v. Simmonds, 49 Cal.2d 84, 85, 315 P.2d 305, it was held that:

'There may be a 'trial' and hence a situation proper for a new trial motion where only issues of law are determined.'

In effect, in the instant case, the reversal of the former judgment directed, or at least authorized, a new trial on the remaining issues. An unqualified reversal remands a cause for a new trial. Central Savings Bank of Oakland v. Lake, 201 Cal. 438, 443, 257 P. 521. In McDonnell v. American Trust Co., 178 Cal.App.2d 325, 2 Cal.Rptr. 826, it was held that under section 583, supra:

'* * * providing that when an appeal has been taken and the judgment reversed with cause remanded for a new trial, the action 'must be dismissed' by the trial court, on proper notice and motion, unless brought to trial within three years from the date on which remittitur is filed.'

In Booth v. County of Los Angeles, 69 Cal.App.2d 104, 108, 158 P.2d 401, 403, in affirming a dismissal under section 583, supra, it was said:

'When three years had elapsed after the filing of the remittitur and the action had not been brought to trial, the court was without jurisdiction to proceed further except by ordering a dismissal.'

See also Legg v. United Benefit Life Insurance Co., 136 Cal.App.2d 894, 289 P.2d 553.

The effect of section 656, Code of Civil Procedure, and authorities cited by the parties in interest here in connection therewith, indicating that a new trial is a re-examination of an issue of fact was fully explained in Carney v. Simmonds, supra [49 Cal.2d 84, 315 P.2d 305] which to some extent specially overruled the holdings in some of those cases and definitely held that 'There may be a 'trial' and hence a situation proper for a new trial motion where only issues of law are determined' and said that 'As a matter of orderly procedure there is no less reason why the trial court should have a second chance...