Wilson v. Barry

• Decision Date: 10 August 1953
• Citation: 259 P.2d 991,119 Cal.App.2d 621
• Court: California Court of Appeals Court of Appeals
• Parties: WILSON et al. v. BARRY et al. Civ. 8230. Sac. 6302.

Page 991

259 P.2d 991

119 Cal.App.2d 621

WILSON et al. v. BARRY et al.

Civ. 8230.

Sac. 6302.

District Court of Appeal, Third District, California.

Aug. 10, 1953.

Carroll Single and Charles L. Moore, Jr., San Francisco, for appellant.

Walter F. Pettit, San Francisco, for respondent.

SCHOTTKY, Justice.

This is an appeal 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.

A former appeal was before this court involving an appeal from an order granting defendants' motion to withdraw alleged 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, it being held that Barry's actions constituted a general appearance and that the withdrawal of appearance should not have been allowed as to him. 102 Cal.App.2d 778, 228 P.2d 331.

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 affidavit;

A first amended complaint was filed on August 18, 1949, and a demurrer was interposed thereto on 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 prior appeal was filed by plaintiffs on February 14, 1950;

On March 12, 1951, the above referred to opinion of this court was filed;

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, the 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 present 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 present appeal was filed.

It appears that plaintiffs were granted several continuances in the action, both on and off the record. Apparently some of the continuances were granted due to the fact that there were several substitutions of counsel for plaintiffs. It appears that five different counsel of record have represented plaintiffs.

Appellants contend that the action of the trial court in granting the motion to dismiss the action was arbitrary and capricious and was an abuse of discretion.

Section 583 of the Code of Civil Procedure provides in part as follows:

'The court may in its discretion dismiss any action for want of prosecution on motion of the defendant and after due notice to the plaintiff, whenever plaintiff has failed for two years after action is filed to bring such action to trial, * * *.'

The intent of said section 583 has been well stated in Hibernia Savings & Loan Society v. Lauffer, 41 Cal.App.2d 725, at page 729, 107 P.2d 494, at page 496:

'* * * The purpose of said section 583, as indicated in Romero v. Snyder, supra, at page 219 of 167 Cal. , at page 1003 of 138 P. [1002] was 'to fix: (1) A minimum period within which mere delay is not deemed to be sufficient cause; (2) an immediately ensuing interval of three years, during which the court, in its discretion, may adjudge it sufficient; and, (3) a maximum period of five years, upon the expiration of which, the delay is declared to be sufficient as a matter of law and the dismissal is made mandatory.''

The instant appeal involves the two year provision of the section and the authorities indicate that a wide discretion rests in the trial court in applying this provision.

In Jepsen v. Sherry, 99 Cal.App.2d 119, the court said at page 120, 220 P.2d 819, at page 822:

'It is well settled that a court has an inherent and statutory power to dismiss an action for a failure to prosecute it with diligence; and that its action should not be disturbed unless an abuse of discretion clearly appears.' (Italics added.)

The court then went on to say on the same page:

'However, the two years mentioned in these statutes is not an arbitrary limit to be followed in all cases, but was intended as a general guide in determining whether or not a 'want of prosecution' appears and, if so, whether this power should be used in view of the entire situation. This discretion is one controlled by legal principles and is to be exercised in accordance with the spirit of the law and with a view to subserving, rather than defeating, the ends of substantial justice. [Citation.] Each case must be decided on its own peculiar features and facts. [Citation.]' (Italics added.)

The record shows that the action was filed on August 20, 1948, and that the order of dismissal was filed on October 3, 1951. Thus it appears that less than 37 1/2 months elapsed between the filing of the action and the order of dismissal. The appeal from the order granting defendants' motion to withdraw their appearance was filed on February 14, 1950, and the remittitur in that appeal was filed on May 14, 1951. If the 15 months consumed by said appeal were deducted from the total of 37 1/2 months which elapsed between the time of the filing of the action and the order of dismissal, it would leave a period of less than 23 months.

While we know of no case dealing with the propriety of computing time consumed by an appeal in dismissing an action not brought to trial within two years after the filing of the action, there are cases dealing with the question in connection with the five year mandatory dismissal provisions of Code of Civil Procedure, section 583. The principles enunciated by those cases seem equally applicable to the instant case, considering it on its own peculiar facts.

In Christin v. Superior Court, 9 Cal.2d 526, 71 P.2d 205, 112 A.L.R. 1153, the complaint was filed on January 24, 1930. On July 17, 1930, the trial court granted a motion for change of venue from which plaintiff appealed on August 14, 1930. The order was reversed by the appellate court on March 22, 1934; the remittitur issuing on May 22, 1934. After various delays caused by demurrers and pending negotiations for settlement, the case was set for trial on August 12, 1936. On July 15, 1936, defendants moved for a dismissal on the grounds that the action had not been brought to trial within five years after filing. The court denied the motion and the case was reset for trial, whereupon defendants petitioned for a writ of prohibition. In answering whether or not the period of time consumed by the first appeal was to be considered the court, 9 Cal.2d at page 530, 71 P.2d at page 207, said:

'We are nevertheless of the opinion that the motion was properly denied for another reason. Respondent contends that while the appeal from the order changing venue was pending in the District Court of Appeal, it was not possible for the plaintiff to bring the cause to trial; and that upon the successful termination of this appeal, plaintiff was restored to his position at the time the erroneous order was made, with the result that the statutory period provided by section 583 did not run during the interval of 3 years and 9 months. In our view this contention is sound, and the peculiar circumstances of this case must be deemed to give rise to one of the exceptions to the terms of section 583.'

Further on, in speaking of analogous situations, the court said:

'* * * Thus, where an appeal from a judgment is taken, the trial court has no jurisdiction to proceed in the cause during the pendency of the appeal, and consequently the time consumed on appeal is not considered as part of the statutory period. Kinard v. Jordan, 175 Cal. 13, 164 P. 894. And where contestants of a will were induced by fraud to consent to a dismissal of their contest, and later had the dismissal vacated, the court held that the time between the dismissal and the reinstatement of the action was to be excluded in computing the five-year period. Estate of Morrison, 125 Cal.App. 504, 14 P.2d 102. See, also, Allyne v. Superior Court, 200 Cal. 661, 254 P. 564.'

In discussing the Estate of Morrison, the court said, 9 Cal.2d at page 533, 71 P.2d at page 208:

'The theory of this decision seems to us to be equally applicable to a situation where, for all practical purposes, going to trial would be impossible, whether this was because of total lack of jurisdiction in the strict sense, or because proceeding to trial would be both impracticable and futile.'

Finally the court said, 9 Cal.2d at page 533, 71 P.2d at page 209:

'* * * If the actual time on appeal had consumed the whole of the five-year period, could plaintiff have been held barred from going to trial? This would be an amazing miscarriage of justice, penalizing conduct entirely reasonable, and inducing procedure detrimental to the interests of both court and litigants. And the same is true where not the whole period, but a substantial part of it is consumed on appeal. We are therefore led to the conclusion that under the circumstances of this case, the time consumed by the appeal from the order changing venue is not to be counted as part of the five-year period...