Tew v. Tew
| Decision Date | 06 May 1958 |
| Citation | 324 P.2d 625,160 Cal.App.2d 141 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Verlah Fern TEW, Plaintiff and Appellant, v. Willie TEW, Defendant and Respondent. Civ. 9250. |
William H. McPherson, Fairfield, for appellant.
Kilpatrick & O'Hara and J. Clinton Peterson, Vallejo, for respondent.
Plaintiff appeals from an order of the trial court granting defendant's motion to dismiss plaintiff's action pursuant to the provisions of section 583 of the Code of Civil Procedure.
On May 31, 1946, plaintiff was granted an interlocutory decree of divorce, which decree approved and incorporated therein a previous property settlement agreement purporting to divide all of the community property of the parties. On May 31, 1947, plaintiff moved to modify the interlocutory decree on the ground that defendant falsely represented to plaintiff the extent and value of the community property of the parties at the time the agreement was executed. Her motion was denied on August 6, 1947, and thereafter a final decree of divorce was entered. On the same day, May 31, 1947, she also filed this action for an accounting and other relief wherein she made the same allegations relative to defendant's false representation concerning the community property. Defendant demurred, and on December 27, 1948, the same was overruled. On January 11, 1949, defendant answered, and as a separate defense set up the order of August 6, 1947, denying plaintiff's motion to modify the interlocutory decree. The cause was set for trial on February 4, 1949. When the case was called on that date, plaintiff's counsel withdrew and the matter was ordered off calendar, to be thereafter reset. On May 24, 1956, pursuant to plaintiff's motion, the case was set for trial on October 26, 1956. On June 1, 1956, Mr. Thomas F. O'Hara, who still appeared as the attorney of record for defendant, addressed a letter to plaintiff's counsel wherein he stated as follows:
'At the present time it is my understanding that the relationship of attorney and client no longer exists in the above entitled matter from my standpoint.'
Thereafter a notice of trial was personally served on the defendant in Flathead County, Montana, on September 15, 1956. When the cause came on for trial defendant was represented by Mr. O'Hara. At the suggestion of the court Mr. O'Hara moved to dismiss the action on the ground that plaintiff had failed to prosecute the same within the five-year period as provided in section 583 of the Code of Civil Procedure. There is no question but that the cause had then been at issue for more than the statutory period. It was stipulated by counsel for both parties that the defendant had been out of the state during the greater portion of the statutory period. Defendant's motion was granted and this appeal followed.
It is plaintiff's first contention that the court erred in granting defendant's oral motion to dismiss on the ground that the same was made without due notice to her. In support thereof she urges that she was not given an opportunity to show defendant's absence from the state as well as the lack of attorney-client relationship between the defendant and Mr. O'Hara, and that such a factual showing would have made said section inapplicable to the facts in the present case.
The pertinent provisions of section 583 are as follows:
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