Vecki v. Sorensen

• Decision Date: 17 June 1959
• Citation: 340 P.2d 1020,171 Cal.App.2d 390
• Court: California Court of Appeals Court of Appeals
• Parties: Marion VECKI and Vera Vecki, his wife, Plaintiffs and Appellants, v. Rigmore SORENSEN, as Executrix of the Will and Estate of Peter Sorensen, Deceased, Defendant and Respondent. Civ. 18030.

Page 1020

340 P.2d 1020

171 Cal.App.2d 390

Marion VECKI and Vera Vecki, his wife, Plaintiffs and Appellants, v. Rigmore SORENSEN, as Executrix of the Will and Estate of Peter Sorensen, Deceased, Defendant and Respondent.

Civ. 18030.

District Court of Appeal, First District, Division 1, California.

June 17, 1959.

Julian D. Brewer, San Francisco, for appellants.

Ropers & Majeski, Redwood City, for respondent.

TOBRINER, Justice.

This is an appeal from a judgment of dismissal for failure to bring the case to trial within five years after the filing of appellants' complaint.

In substance appellants' action for an injunction to restrain respondent from quarrying and excavating land adjacent to appellants' land, including damages thus inflicted upon appellants' land, gave birth to a second issue involving appellants' title. The litigation of the descendant dispute according to respondent caused a delay sufficient to dispatch the parent suit under Code of Civil Procedure, section 583, because it was not 'brought to trial within five years after the plaintiff filed his action.'

Appellants filed the original suit for injunction and damages on December 5, 1950. Respondent answered and cross-complained that approximately one-third of the land claimed by appellants had been mistakenly conveyed to them; that respondent, instead owned this one-third, and that the deed should be reformed to reflect the intent of the parties. The case was called for trial on December 4, 1952, a date which was two years minus one day later than the date of the filing. The jury was impaneled and sworn. Thereupon the judge ruled that the answer and cross-complaint raised equitable issues and ordered a 'recess' of the jury until December 10, 1952, so that such 'issues other than damages' might first be decided.

The resolution of those matters entailed a period of two years less 18 days. Thus, proceeding to hear the equitable issues, the court on December 19, 1952, entered a decree reforming the deed as urged by respondent, thereby reducing the amount of appellants' land to approximately two-thirds of that alleged in the complaint. Appellants appealed on January 12, 1953; the court therefore ordered 'that the jury previously ordered to return Wednesday, December 10, 1952, need not appear as ordered.' The First District Court of Appeal, Division Two (127 Cal.App.2d 407, 273 P.2d 908), affirmed the decree on November 16, 1954.

Further steps were then taken in the original action. After the death of defendant Peter Sorensen, appellants, on June 9, 1954, filed a claim against the estate incorporating the same allegations as those of the complaint, and on October 16, 1956, the parties stipulated that the executrix of the estate could be substituted for decedent. The trial court, on January 24, 1957, then 'revived and continued' the action, substituting Sorensen's executrix as defendant, and granted appellants leave to file their supplemental complaint against the executrix. Although the case was set for jury trial on March 27, 1957, the clerk of the court dropped it from the calendar upon the erroneous impression that the jury fees had not been paid.

On June 7, 1957, respondent moved to dismiss, and after hearing, the court granted the motion on June 20, 1957, entering judgment of dismissal on June 28, 1957.

We approach the case in the light of recognition of the fact that courts exist primarily to afford a forum for the settlement of litigable matters between disputing parties. Over a long and bitter history this peaceful method of adjudication has replaced other and primitive, and indeed physical, means of resolution (Frank, Courts on Trial, Princeton University Press (1949), pp. 5-13.) To deny the forum upon the ground that one or the other party has sacrificed it because the procedure has itself been too slow does not appeal to a mature sense of justice. Only the most compelling reasons would support a surrender of this necessary and valued right of resolution for any such cause.

In the instant case there are no compelling reasons to deny the right. We shall point out that the procedure did not entail a period longer than five years because the case was brought to trial within that span of time, and we shall set out, likewise, that practical considerations, long recognized as a justification for delay, were present in this litigation.

The first decisive reason for holding that the action was not subject to dismissal lies in the fact that when the jury was impaneled and sworn on December 4, 1952, this case was 'brought to trial' within the meaning of section 583.

In a characteristically pungent and penetrating decision, rendered during the pendency of the present appeal, Justice Dooling, in Kaoru Kadota v. City and County of San Francisco, 1958, 166 Cal.App.2d 194, 195, 333 P.2d 75, 76, ruled that '[t]he holding of our court in Silcox v. Lang, surpa [78 Cal. 118, 20 P. 297], that the impanelment of the jury is a part of the trial not only comports with the common understanding among lawyers and judges, but finds support in the rulings of the courts of other jurisdictions in a variety of circumstances.' In that case '[b]y written stipulation the time of trial was extended until May 11, 1957. On May 9, 1957, the parties regularly appeared in court for trial and a jury was impaneled and sworn.' Plaintiff then obtained a continuance until May 12, 1957. However, on May 13, 1957, the trial court dismissed the action for failure to bring the case to trial within five years. In reversing an order of dismissal under section 583 the court declared, 'Our Supreme Court in Silcox v. Lang, 78 Cal. 118, 124, 20 P. 297, 301, said: 'The impaneling of a jury is a part of the trial, within the meaning of the code, and any ruling of the court with respect thereto, if erroneous, is an error of law occurring at the trial * * *' (Emphasis ours.)' Hence, 'we are satisfied that the action was brought to trial within the time fixed by the written stipulation of the parties * * *.' (166 Cal.App.2d at page 196, 333 P.2d at page 76.)

Respondents seek to refute Kadota upon the threefold premise that it erroneously relied upon Silcox v. Lang, 1889, 78 Cal. 118, 20 P. 297; that an impanelment of a jury is identifiable with rulings on demurrers and preliminary injunctions, which do not constitute a trial within the section; and that the commencement of a jury and non-jury trial must be identical and the latter does not begin until the first witness is sworn.

In Silcox an appeal from a lower court's order sustaining an objection to a challenge to a juror, was treated by appellants as an "irregularity in the proceedings of the court" and presented 'by affidavit.' (78 Cal. at page 124, 20 P. at page 301.) But, said the court, the trial judge's wrongful grant of the motion was an "error in law occurring at the trial" because the 'impaneling of the jury is a part of the trial' (78 Cal. at page 124, 20 P. at page 301), and thus could be presented only by a bill of exceptions. The case therefore supports Kadota.

Respondent urges that the swearing of the jury involved only issues of law and therefore should be treated like a demurrer (Berri v. Superior Court, 1955, 43 Cal.2d 856, 279 P.2d 8) or a preliminary injunction (Superior Oil Co. v. Superior Court (1936), 6 Cal.2d 113, 56 P.2d 950). But the whole point is that the test of a pleading by demurrer seeks a determination of the matter 'without the effort and expense of...