Smithers v. Ederer, 16988
| Decision Date | 26 November 1956 |
| Docket Number | No. 16988,16988 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Gilbert W. SMITHERS, Plaintiff and Respondent, v. Adolph J. EDERER, Defendant and Appellant. |
Leo J. Walcom, John T. Harmon, San Francisco, for appellant.
J. W. Jackson, Bergen Van Brunt, San Francisco, for respondent.
Defendant appeals from a summary judgment granted more than five years after the commencement of he action and over the objection of defendant who contended that dismissal of the action was mandatory under section 583 of the Code of Civil Procedure.
The action was filed on June 15, 1949. It alleged that plaintiff had loaned defendant $5,000 and prayed for judgment in this amount plus interest from November 26, 1947. The defendant alleged in his answer that plaintiff had advanced the $5,000 as an investment in a theatrical production being produced by defendant; that their understanding was that if said production was successful, plaintiff was to receive back the $5,000 without interest, plus a one-half interest in the profits; that if the production was unsuccessful, plaintiff was to get back $2,500 only, without interest; that the production was unsuccessful and, as the result, defendant was indebted to plaintiff in the sum of $2,500, without interest. Defendant prayed 'that plaintiff have judgment only for the unpaid indebtedness admitted herein.'
On July 27, 1954, defendant filed a motion to dismiss on the ground that the action had not been brought to trial within five years after being filed. Code Civ.Proc. § 583. While this motion was pending plaintiff filed a motion for judgment in the amount of $2,500 which defendant admitted was owing and for an order severing the remainder of the claim and ordering the action to proceed as to such remainder. Code Civ.Proc. § 437c, last paragraph. In his motion plaintiff stated that if the court was of the opinion that a trial could not be had as to the remaining amount claimed by him, he waived 'all claim and demand for judgment over the amount of money that the defendant has admitted by his verified affidavit and answer is now due, owing and unpaid to the plaintiff.' The court thereupon granted plaintiff a judgment for $2,500 but denied his motion to proceed as to the remainder of such claim. It also denied defendant's motion to dismiss. The minute order entered by the court refers to plaintiff's waiver of any additional claim. It is apparent that the court accepted such waiver upon the condition specified by plaintiff, i. e., that the court was of the opinion that a trial could not be had as to any disputed issue. Such an opinion must necessarily rest upon section 583 of the Code of Civil Procedure, which provides that an action shall be dismissed unless it is brought to trial within five year, after being filed. Thus, although the record shows a denial of defendant's motion under section 583, which was addressed to the entire action, the effect of the court's order was to dismiss and terminate the action except as to the amount which defendant had admitted in this answer was due and owing.
There can be no question that plaintiff was entitled to a judgment for $2,500 at any time after defendant filed his answer and within five years after the action was filed. The only question is whether the court had any right to grant such judgment after the five years had expired, in view of the provisions of section 583 of the Code of Civil Procedure.
As to that portion of the action that was not in dispute, the court was faced with the same situation as that in Martin v. Gibson, 48 Cal.App.2d 449, 119 P.2d 1012. There the plaintiff filed an action to foreclose a mortage. The answer admitted all of the allegations of the complaint. When more than five years had elapsed after the filing of the complaint, the defendants moved under section 583 to dismiss the action and the trial court granted the motion. On appeal, the judgment of dismissal was reversed. It was held that the defendants by admitting all the facts alleged in the complaint agreed that there should be not trial. It should be noted that, in the instant case, the plaintiff was not allowed to go to trial as to that portion of the action which was in dispute. Instead, he was given judgment only for that portion of his claim that did not, necessitate a trial in the light of defendant's answer and his prayer therein that plaintiff have judgment for the amount admitted to be due. By his answer defendant in effect waived a trial as to such amount and he cannot...
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