Martin v. Gibson

TUTTLE, J.

This is an action to foreclose a mortgage. The complaint was filed on May 8, 1930. On April 12, 1932, the defendants filed the following answer:

“Now come defendants Andrew A. Gibson, Ruth B. Gibson and Emma G. Trebilcot, and for answer to plaintiff’s complaint on file herein admit each, every and all of the allegations in said complaint contained. Wherefore, having fully answered said complaint said defendants pray for such relief therein as they are entitled to by law.”

On May 15, 1939, defendants filed a notice of motion to dismiss under section 583 of the Code of Civil Procedure on the ground that the action had not been brought to trial within five years after the filing of defendants’ answer. On July 18, 1939, the superior court entered an order granting the motion. Plaintiff appeals from said order.

The portion of said section which appears to be applicable to the situation reads as follows:

“Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced or to which it may be transferred on motion of the defendant, after due notice to plaintiff or by the court upon its own motion, unless such action is brought to trial within five years after the plaintiff has filed his action, except where the parties have stipulated in writing that the time may be extended.”

Appellant contends that the foregoing provision is not applicable where the record shows that a trial has been dispensed with, and there can therefore

be no trial.

We think appellant has properly construed the law. A trial,

[451]

within the meaning of said section, is a determination of the issues of fact.

(Perrin

v.

Miller,

35 Cal. App. 129 [169 Pac. 426].) Here defendants admitted that all the facts set forth in the complaint were true. In effect, they agreed that there should be no trial. It must be remembered that the motion here is not based upon want of prosecution, but upon a failure to bring the action to