Hillsdale Builders Supply Co. v. Eichler

NOURSE, P. J.

On this appeal from an order dismissing the action for want of prosecution the only question presented is whether the trial court abused its discretion in making the order. The action was commenced on May 13, 1948, in a complaint against Eichler and several John Doe defendants alleging an oral promise of the defendants to answer for the debt of the corporate defendant, Camel, Inc. On June 30, 1948, the court sustained defendants’ demurrer to this complaint. On July 15, 1950, an amended complaint was filed naming two corporate defendants which were alleged to have obtained the assets of Camel, Inc. by successive transfers on which theory plaintiff sought to bind them on the antecedent oral promise of Eichler to answer for the debt of Camel, Inc. To this amended complaint the defendants demurred and moved to strike at the same time the motion to dismiss was made. Action was taken on the motion to dismiss only.

Defendants’ motion was based on section 583 of the Code of Civil Procedure which reads in part: “The court may in

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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 cases are uniform in holding that when the trial court dismisses an action under this section the “discretion” mentioned therein is the discretion of that court, and not that of a reviewing court. It is equally true that the action of the trial court will not be disturbed except on a showing of a manifest abuse of such discretion.

Grass

v.

Rindge Co.,

84 Cal.App. 750, 763 [258 P. 673];

Steinbauer

v.

Bondesen,

125 Cal.App. 419, 426-427 [14 P.2d 106] ;

Burbank

v.

Continental Life Ins. Co., 2