Burbank v. Continental Life Insurance Co.

KNIGHT, J.

Exercising the discretionary power granted hy section 473 of the Code of Civil Procedure and on plaintiff’s motion, the trial court vacated an order dismissing the above-entitled action and restored for further hearing and determination on the merits the motion for dismissal theretofore made by defendant. The order vacating was based upon findings of inadvertence and mistake, and defendant has appealed therefrom. We find no legal ground warranting interference with the exercise of the trial court's discretion.

The order of dismissal was granted by the court pursuant to a motion made by defendant under the authority of section 583 of the Code of Civil Procedure which at the time these proceedings took place provided: “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 answer is filed to bring such action to trial.” The motion for dismissal came on for hearing on October 17, 1932, at which time the clerk entered a minute order reciting that on that day said motion was ordered submitted for decision; and on November 17, 1932, a second minute order was entered to the effect that said motion having been theretofore submitted, was granted; and on December 2, 1932, the clerk recorded a formal judgment of dismissal in the judgment book. Before the recordation of said judgment, however, and on November 30, 1932, plaintiff served and filed his notice of motion to vacate the minute order of November 17, 1932. The motion was based upon the claim, supported by affidavits, that at the time the motion to dismiss was heard on October 17, 1932, the court stated in substance, as plaintiff (who is an attorney) and his counsel

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understood its remarks, that it desired additional counter-affidavits, and that further time would be granted to procure and file the same, following which the order for the submission of the motion to dismiss would be entered; but that before plaintiff procured and filed said additional affidavits the motion to dismiss was granted. Attached to the notice of motion to vacate were the additional counter-affidavits plaintiff had intended to file in opposition to the motion to dismiss. They were made by two attorneys who at different times represented plaintiff prior to the proceedings taken to dismiss the action.