Jackson v. Thompson

MOORE, P. J.

Plaintiff appeals from an order dismissing his action for want of prosecution.

On July 21, 1936, plaintiff filed suit to enforce the payment of a promissory note which by assignment defendants had guaranteed to pay. A demurrer to the complaint was overruled on August 3rd. On August 5th defendants filed their answer. Plaintiff brought the action to trial January 27, 1937. At the trial evidence was introduced and both parties then rested. The minute entry following the trial reads: “Said Cause was thereupon submitted to the court for consideration and decision and by the court taken under

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advisement.” One week later, February 3, 1937, defendants served and filed their “Notice of Motion for Order Reopening Case and Permitting Defendants to file Amended Answer.” This motion was noticed for February 15. At the time it was called the parties appeared in court and stipulated that defendants might file an amended answer and that plaintiff have fifteen days within which to plead. The court ordered accordingly. Thereafter, on the 5th day of March, the parties filed a written stipulation that the amended answer annexed to the notice of motion might be filed as the amended answer. No order was made vacating the submission of the cause and neither was any request made for such order at any time. Plaintiff evidently deemed it inadvisable to demur to the amended pleading. No further proceedings were had until March 11, 1939. On that date defendants served and filed their notice of motion to dismiss the action on two grounds: (1) failure for more than two years after filing to bring the action to trial; and (2) that more than two years have elapsed since the filing of the action and plaintiff has not prosecuted with diligence. The motion to dismiss came on for hearing May 15, 1939, when the defendants submitted the statistical data hereinabove recited. Plaintiff countered by submitting the minute entries of the court showing in addition the trial of the action on the 27th day of January, 1937, giving names of the witnesses introduced on behalf of plaintiff and that both parties had rested.

Following the hearing on the motion and the arguments of counsel, the court granted the motion to dismiss for lack of prosecution.

Section 583, Code of Civil Procedure, reads in part: “The court may in its discretion dismiss any action for want of prosecution on motion of defendant . . . whenever plaintiff has failed for two years after action is filed to bring such action to trial.”