South v. Wishard

• Decision Date: 07 November 1958
• Citation: 165 Cal.App.2d 8,331 P.2d 227
• Court: California Court of Appeals Court of Appeals
• Parties: Nelle C. SOUTH, surviving widow of and Administratrix of the Estate of N. Lindsay South, deceased, Plaintiff, Appellant and Respondent, v. H. A. WISHARD, also known as Harry A. Wishard, and Stella Wishard, his wife, Defendants, Respondents and Appellants. Civ. 23098.

Page 227

331 P.2d 227

165 Cal.App.2d 8

Nelle C. SOUTH, surviving widow of and Administratrix of the Estate of N. Lindsay South, deceased, Plaintiff, Appellant and Respondent, v. H. A. WISHARD, also known as Harry A. Wishard, and Stella Wishard, his wife, Defendants, Respondents and Appellants.

Civ. 23098.

District Court of Appeal, Second District, Division 3, California.

Nov. 7, 1958.

Hearing Denied Dec. 30, 1958.

James C. Janjigian, Lawrence W. Young, Fresno, for appellant and respondent Nelle C. South.

J. E. Simpson, Los Angeles, for defendants, respondents and cross-appellants Wishard.

SHINN, Presiding Justice.

This is the third appeal in an action brought by N. Lindsay South, now deceased, against Harry A. Wishard, Stella Wishard, his wife, and Maudine Brown. The suit is one to quiet title to an alleged interest in overriding oil and gas royalties from wells in Fresno County as against the Wishards and Brown; to impose a constructive trust on Royalties allegedly received by the Wishards; and to recover royalties amounting to $234,000.

Suit was commenced in the superior court of Fresno County. The Wishards made a motion under section 367, subdivision 1 of the Code of Civil Procedure to change the place of trial to Los Angeles County. March 26, 1953, the motion was granted and the cause was ordered transferred. April 6, 1953, South appealed from the order granting the motion. The order was affirmed on the appeal. South v. Wishard, 123 Cal.App.2d 642, 267 P.2d 827. May 6, 1954, the remittitur was filed with the clerk of the superior court of Fresno County. June 3, 1954, South paid the fees and costs of the transfer whereupon the file was transmitted to the clerk of the superior court of Los Angeles County.

A demurrer of the Wishards to the second amended complaint remained undetermined in June 1954. The Los Angeles court sustained the demurrer without leave to amend and entered judgment dismissing the action as to the Wishards. On an appeal by South, the judgment of dismissal was reversed by this court. South v. Wishard, 146 Cal.App.2d 276, 303 P.2d 805. After South's death on November 3, 1956, his widow was duly appointed administratrix of his estate and was ordered substituted as plaintiff in the case.

March 4, 1957, the Wishards gave notice of motion to dismiss the action as to them. The motion was based upon the following grounds: (1) South failed to pay the fees and costs of transferring the cause to Los Angeles County within one year after entry of the order granting a change of venue, as he was required to do by section 581b of the Code of Civil Procedure; (2) The complaint does not state a cause of action against Mrs. Wishard and cannot be amended to state a cause of action against her. The Wishards also sought dismissal of the first count of the complaint (to quiet title) upon the further ground that this court held on the former appeal that South's claim of equitable ownership of the royalty interest will not sustain an action to quiet title against the Wishards and Brown, who allegedly hold the legal title. The motion to dismiss was heard concurrently with two motions of the Wishards to re-tax the costs claimed by plaintiff on the successful appeal of her husband. The court granted the Wishards' motion to dismiss the suit, but the record does not disclose the ground or grounds of the ruling. The motions of the Wishards to re-tax costs were denied. Plaintiff appeals from the order dismissing the case as to the Wishards; the latter have noticed an appeal from the denial of their motions to re-tax costs.

We will first discuss plaintiff's appeal from the order of dismissal. The principal question to be considered on her appeal is whether, as the Wishards contend, dismissal was required because of South's failure to comply with section 581b of the Code of Civil Procedure.

Section 397, subdivision 1 of the Code of Civil Procedure provides that the court may, on motion, change the place of trial when the court designated in the complaint is not the proper court. Section 399 provides that when a case is ordered transferred to another court because it was not commenced in the proper court, the costs and fees of transfer must be paid by the plaintiff before the transfer is made. Section 581b reads as follows: 'No action heretofore or hereafter commenced, where the same was not originally commenced in the proper court, and which has been ordered transferred to the proper court, shall be further prosecuted, and no further proceedings shall be had therein, until the fees and costs of the transfer thereof and of filing the papers in the court to which transferred have been paid, as provided in Section 399 of this code; and all such actions heretofore or hereafter commenced must be dismissed by the court in which the action or proceeding was originally commenced, on its own motion, or on the motion of any party interested therein, whether named in the complaint as a party or not, where the costs and fees of making up the transcript or papers or for transmission of the same to the clerk or judge of the court to which it is ordered transferred, or of filing the papers anew, have not been so paid for one year after the entry of the order for transfer.'

It is settled that the provisions of section 581b are mandatory and that the court must dismiss the action where the plaintiff has not paid the transfer fees within one year after the entry of the order changing venue. Davis v. Superior Court, 184 Cal. 691, 195 P. 390; Abraham v. King, 51 Cal.App. 703, 197 P. 659. In our opinion, however, there is an implied exception to the statute, namely, that where the plaintiff has appealed from the order granting a change of venue, he need not pay the transfer fees during the pendency of his appeal and the time during which the appeal is pending is to be excluded from the one year prescribed by the statute. A different rule would require technical application of the section which would be wholly unnecessary for the accomplishment of its purposes.

Upon entry of the order changing the place of trial to Los Angeles County, South could either have appealed, as he did and had the right to do, or paid the fees and declined to challenge the order. Although the order of March 26, 1953 did not specifically require him to pay the transfer fees, it had the effect of doing so, since, as we have said, section 399 requires the payment of the fees before the transfer is effected. Payment of the transfer fees would have constituted compliance with the order. Had South paid the fees before or during the pendency of his appeal, he probably would have been faced with the contention that he had acquiesced in the order and forfeited his right of appeal. See Jones v. Blonder, 159 Cal.App.2d 316, 323 P.2d 1015. We do not believe that section 581b should receive an interpretation that would jeopardize the right of a plaintiff to assign error to an order changing the place of trial pursuant to section 397, subdivision 1.

The Wishards argue, in this connection, that South could have safely withheld payment of the transfer fees by obtaining a writ of supersedeas. They rely heavily upon section 949 of the Code of Civil Procedure, which states that an appeal from an order granting or denying a motion for change of venue does not stay proceedings without supersedeas. The argument is beside the question whether the pendency of the appeal created an exception to the requirement that the fees must be paid within a year. Supersedeas, even if proper, would have served no purpose unless the Wishards had been attempting to have the case tried in Los Angeles County during the pendency of the appeal.

Our interpretation of section 581b finds support in cases construing other limiting statutes which are mandatory in application. One such statute is section 660 of the Code of Civil Procedure, which provides that the power of the court to pass upon a motion for new trial shall expire 60 days from and after service on the moving party of notice of entry of judgment, or, if such notice has not theretofore been served, then 60 days after the filing of the notice of intention to move for a new trial. Section 660 further provides that if the motion is not determined within said period of 60 days, it is automatically denied. The court nevertheless held in Collins v. Nelson, 41 Cal.App.2d 107, 106 P.2d 39, a case arising under section 660, that where a party has filed a written motion to disqualify the trial judge from passing upon a motion for new trial, the time required for the determination of the motion to disqualify is to be excluded in computing the 60-day period within which the motion for new trial must be determined. See, also, Rosenfield v. Vosper, 70 Cal.App.2d 217, 223-224, 160 P.2d 842.

In the Collins and Rosenfield cases and in others such as Kinard v. Jordan, 175 Cal. 13, 164 P. 894, and Estate of Morrison, 125 Cal.App. 504, 14 P.2d 102, it was held that the statutory time for performance of an act was extended while there existed legal impossibility to proceed due to the lack of the court's jurisdiction for limited periods of time; but legal impossibility to act has not been regarded as the only acceptable excuse for delay. Certain exceptions have been 'engrafted on the statute by the decisions.' Ellsworth v. United States Metals Corp., 110 Cal.App.2d 727, at page 728, 243 P.2d 575, at page 576. Equally effective as legal impossibility is the impracticability and futility of action which could have been taken in the interim. Illustrations of this doctrine will be found in Westphal v. Westphal, 61 Cal.App.2d 544, 143 P.2d 405, 408. In that case there were 12 plaintiffs, as to 10 of which judgments had been entered in their favor after an order sustaining the demurrers of the defendants. Two plaintiffs remained and as to them the action was dismissed for their failure to bring it to trial within the five year period prescribed by ...