Rose v. Knapp

• Citation: 237 P.2d 981,38 Cal.2d 114
• Decision Date: 04 December 1951
• Docket Number: No. L,L
• Court: United States State Supreme Court (California)
• Parties: ROSE v. KNAPP et al. A. 21556.

Page 981

237 P.2d 981

38 Cal.2d 114

ROSE v. KNAPP et al.

No. L. A. 21556.

Supreme Court of California, in Bank.

Dec. 4, 1951.

As Modified Dec. 27, 1951.

A. J. Weiss and Samuel H. Sherman, Hollywood, for appellant.

Bodkin, Breslin & Luddy, S. V. O. Prichard, Benjamin Chipkin and Oliver O. Clark, Los Angeles, for respondent.

GIBSON, Chief Justice.

This appeal involves the propriety of the trial court's dismissal of a quiet title action pursuant to a motion made by defendants June Knapp and Mattie Hye on the ground that plaintiff had failed to bring the action to trial within five years after the filing of the complaint and that dismissal was mandatory under section 583 of the Code of Civil Procedure. ¹

More than twenty years ago, in 1929, Lorn Betty, plaintiff's predecessor, recovered a money judgment against Ellen Crowder and her son, E. W. Knapp. Betty then brought an action to set aside an alleged fraudulent conveyance of real property to June Knapp, wife of E. W. Knapp, and in September, 1932, obtained a judgment which provided that he should have a lien upon the property and directed that execution should issue accordingly. See Betty v. Knapp, 5 Cal.App.2d 512, 43 P.2d 325. The real property was sold to Betty on execution, and the judgment was satisfied of record, but in August, 1937, the court granted a motion to revive the judgment on the ground that the sheriff's sale was void. See Betty v. Superior Court, 18 Cal.2d 619, 116 P.2d 947. The judgment was thereafter assigned to plaintiff Rose who obtained an alias writ of enforcement and purchased the property at public auction. The present quiet title action was commenced by Rose on July 16, 1943, and the trial was set for June 21, 1944, but after a continuance counsel stipulated on October 20, 1944, that the cause should go off calendar.

On January 18, 1945, the Knapps instituted an action to annul the writ of enforcement under which the real property had been sold and upon which plaintiff's title is predicated. Judgment was entered in favor of the Knapps on May 15, 1946, annulling the writ of enforcement and cancelling the certificate of sale and the deed issued thereunder. This judgment was subsequently reversed on appeal, and the writ was held to be valid, by an opinion which became final on October 2, 1948. Knapp v. Rose, 32 Cal.2d 530, 197 P.2d 7. It was pointed out in that case that 'for many years, by a series of obstructive delays and procedural mishaps, the judgment debtors have succeeded in avoiding the payment of the amount which they owe and they do not suggest, much less assert, that Orse is not entitled to enforce his claim against them.' 32 Cal.2d at page 535, 197 P.2d at page 10.

During the pendency of Knapp v. Rose, supra, plaintiff Rose filed a memorandum to set the present case for trial. The case was set for December 8, 1947, but it was continued until June 16, 1948, when it was ordered off calendar by a minute order which recited that, by stipulation, counsel for the parties had waived the five year provision of section 583 of the Code of Civil Procedure. On March 7, 1949, after the decision on appeal in Knapp v. Rose, plaintiff again moved to set the case for trial, and a date was set, but defendants made motions to dismiss under section 583, and the trial was continued to September 12, 1949, pursuant to a stipulation that defendants' rights under section 583 would not be prejudiced. On August 30, 1949, more than fourteen months after the making of the minute order reciting the waiver of section 583, defendants moved to correct the order by deleting the recital, and the motion was granted on November 16, 1949. Pending that decision, three additional continuances were ordered on the court's own motion.

Between December 1, 1949, and February 7, 1950, defendants made a series of unsuccessful applications to three different trial judges for dismissal of the action under section 583. On February 6, 1950, June Knapp petitioned the District Court of Appeal for a writ of prohibition to restrain trial of the action on the theory that dismissal was mandatory, but the writ was denied on the following day. The cause was then transferred for trial before a judge who had not passed on the prior motions to dismiss, and on February 10, 1950, he made the dismissal order from which the present appeal was taken.

The provision of section 583, requiring dismissal if an action is not brought to trial within five years after the filing of the complaint unless the parties have stipulated for an extension of the period, is mandatory, but it is subject to implied exceptions. As stated in Christin v. Superior Court, 9 Cal.2d 526, 532-533, 71 P.2d 205, 208, 112 A.L.R. 1153, 'The purpose of the statute is plain: to prevent avoidable delay for too long a period. It is not designed arbitrarily to...