Wilson v. Barry
| Decision Date | 05 March 1959 |
| Citation | 335 P.2d 980,168 Cal.App.2d 378 |
| Parties | R. Plerce WILSON, Roberta Wilson and Howard Wilson, Plaintiffs, R. Pierce Wilson and Roberta Wilson, Appellants, v. Robert R. BARRY; Plumas Mining Company, a corporation; Plumas Lumber Company, a corporation, et al., Defendants and Respondents. Civ. 9414. |
| Court | California Court of Appeals Court of Appeals |
Wells & Baldwin, Sacramento, for appellants.
Walter F. Pettit, San Francisco, for respondents.
This is an appeal from an order dismissing the action for failure to bring it to trial within the five-year period as provided by Section 583 of the Code of Civil Procedure.
Two former appeals were before this court. The first appeal was from an order granting defendants' motion to withdraw alleged or unauthorized appearances made in their behalf. The order granting the withdrawal of appearances was reversed as to defendant Barry but affirmed as to all defendants except defendant Barry. Wilson v. Barry, 102 Cal.App.2d 778, 228 P.2d 331. The second appeal was from an order dismissing the action for failure to bring it to trial within the two-year period as provided in Section 583 of the Code of Civil Procedure. The judgment was reversed. Wilson v. Barry, 119 Cal.App.2d 621, 259 P.2d 991.
The following is a chronology of the procedure in this case:
The complaint was filed on August 20, 1948, but no summons was issued nor was any attempt made to serve defendants;
Defendants demurred to the complaint on April 30, 1949, and also at that time made a motion for summary judgment with notice and supporting affidavits;
A first amended complaint was filed on August 18, 1949, and the demurrer was interposed thereto an August 29, 1949;
On October 5, 1949, a motion to withdraw unauthorized appearances was filed, with notice and supporting affidavits;
On December 8, 1949, the demurrer to the first amended complaint was overruled and defendants were given 20 days in which to answer;
On December 16, 1949, the motion to withdraw unauthorized appearances was granted by the trial court;
Notice of the above referred to first appeal was filed by plaintiffs on February 14, 1950;
On March 12, 1951, the above referred to opinion of this court was filed; (102 Cal.App.2d 778, 228 P.2d 331.)
On April 4, 1951, defendants filed a memorandum required to set cause for trial;
Remittitur was filed on May 14, 1951;
On July 12, 1951, defendant Barry filed his answer to the amended complaint;
On July 19, 1951, defendants, through their attorney, Frank M. McAuliffe (who was their attorney throughout the litigation until after the filing of the second appeal), filed and served a Notice of Time and Place of Trial, to the effect that the trial was set for August 14, 1951;
On August 29, 1951, defendant filed and served notice that the trial was set for October 3, 1951;
On September 20, 1951, defendants filed a motion to dismiss, with notice and supporting affidavits;
On October 3, 1951, the case was called to be heard on its merits, at which time the trial court heard the motion to dismiss and granted same;
On December 3, 1951, notice of the second appeal was filed;
On August 10, 1953, opinion of this court was filed reversing order of trial court; (119 Cal.App.2d 621, 259 P.2d 991.)
On October 9, 1953, remittitur issued by this court:
On October 13, 1953, remittitur filed in trial court; plaintiff filed a memorandum to set cause for trial;
On October 19, 1953, trial court, by minute order, set the case for trial on March 9, 1954; and all parties were notified in writing by clerk;
On March 9, 1954, the cause was called for trial. Neither plaintiffs nor their counsel appeared for trial. Robert R. Barry, one of the defendants, was present, as was Theodore G. Elges, Esq., apparently of counsel for defendants, but described in the minutes as 'amicus curiae;' Mr. Elges drew the court's attention to the fact that no notice of time and place of trial had been served by plaintiffs or received by defendants; The court vacated the order setting the case for trial on March 9, 1954;
Thereafter, the record is devoid of activity on plaintiffs' part until on March 16, 1956, plaintiffs filed a motion entitled 'Plaintiffs' Motion--to Tax Cost--Set for Trial--Frame Issues--Appoint Care-taker--Take Depositions, Etc.' (Among other subjects of the motion, plaintiffs moved to set the cause for trial before a jury at the earliest convenient date, pointing out that the case had been twice appealed by plaintiffs and that remittiturs had been filed by this court upon two occasions);
On March 26, 1956, plaintiffs' motion of March 16, 1956, was called; Mr. Carroll Single, Esq., attorney for plaintiffs was present; the defendants were not present, nor were they represented by their counsel; Mr. Single addressed the court relative to the motion; the court directed that the case be placed on the civil active list and continued all pending matters to April 9, 1956;
On April 9, 1956, plaintiffs' motion of March 16, 1956, was again called, Hon. A. K. Wylie, Judge Assigned, presiding; Mr. Single was heard in support of the motions, and Mr. Winslow Christian, Esq., of counsel for defendants, argued against the motions; the court continued the matter to 4:00 p. m. of said date, to be called in chambers, at which time the court ordered inter alia that the case be set for trial by jury on a date to be set by Judge Janes;
On April 13, 1956, the court ordered the case set for trial on July 16, 1956;
On April 18, 1956, the court, upon its own motion, reset the case for trial on September 25, 1956;
On April 20, 1956, plaintiffs filed Notice of Time and Place of Trial, to the effect that trial was set for July 16, 1956, without proof of service upon defendants;
On July 16, 1956, no appearance made and no minute order entered;
On July 27, 1956, the court, upon its own motion, due to the priority of criminal matters, continued the case for trial from September 25, 1956, to October 29, 1956;
On October 8, 1956, the court, upon its own motion, continued the case for trial from October 29, 1956, to the next day, October 30, 1956;
On October 22, 1956, defendants filed a motion to dismiss under Code of Civil Procedure, sec. 583, together with notice and supporting affidavits, noticing said motion for hearing on October 30, 1956;
On October 23, 1956, pursuant to the provisions of the Code of Civil Procedure, sec. 631, the clerk notified the defendants that plaintiffs, who had demanded a jury trial, had failed to deposit jury fees in accordance with requirements of said section;
On October 30, 1956, plaintiffs filed a discharge of their attorney, Carroll Single, Esq., accepted in writing by said attorney; the matter came on this date for trial, and for hearing of defendants' motion to dismiss; R. Pierce Wilson, one of the plaintiffs, was present without counsel, plaintiffs having this date discharged Mr. Single as their attorney; Walter F. Pettit, Esq., counsel for defendants, appeared for defendants; plaintiffs not being represented by counsel, the court continued the motion to dismiss for hearing to November 13, 1956, and advised plaintiff R. Pierce Wilson to be prepared for the hearing on that date; the court also ordered the matter continued for trial to said date;
On November 13, 1956, the matter came before the court upon defendants' motion to dismiss,...
To continue reading
Request your trial
-
Ross v. George Pepperdine Foundation
...expiration of the five-year statutory period. Cf. J. C. Penney Co. v. Superior Court, 52 Cal.2d 666, 343 P.2d 919; Wilson v. Barry, 168 Cal.App.2d 378, 335 P.2d 980. The five years expired on November 12, 1957, and as noted the trial date set pursuant to that memorandum was June 5, 1958, so......
-
State ex rel. City of Las Cruces v. McManus
...a motion to dismiss under Rule 41(e), supra. See Pettine v. Rogers, 63 N.M. 457, 321 P.2d 638, and the recent case of Wilson v. Barry, 168 Cal.App.2d 378, 335 P.2d 980. What further action must be taken if a prompt ruling does not follow need not be considered in this proceeding because non......