Burch v. Slamin

DOOLING, J.

Plaintiff appeals from an order granting a motion to dismiss his action on the ground that it had not been brought to trial within five years. (Code Civ. Proe., § 583.) The action grows out of a three-automobile collision in which the plaintiff and the defendants Slamin and McNulty was each the driver of one of the three cars. Plaintiff had with him as a passenger at the time of the collision one Belfield, an employee, who was killed. His wife was awarded $8,550 against plaintiff by the Industrial Accident Commission. The present action was brought in San Francisco by plaintiff under Labor Code, section 3852, to recover the amount of this award on his own behalf and additional damages for Belfield’s widow.

Defendant Slamin did not appear in the action but defendant McNulty and other named defendants filed an answer which included an attempted plea in abatement based on a pending action in San Mateo County arising out of the same collision in which McNulty was plaintiff and Burch, Slamin et al. were defendants. Nothing further was done in the San Francisco action until the motion to dismiss was made.

In opposition to the motion to dismiss, one of plaintiff’s attorneys filed an affidavit reciting the fact and date of the bringing and the pendency of the San Mateo County action, the purported plea in abatement based thereon, and counsel’s failure to set the cause for trial “relying upon the contention of the moving parties” and “waiting for the final disposition of the action pending in San Mateo County as alleged in the Answer filed by the defendants making the Motion to Dismiss.” Affiant concluded: “That until the final disposition of the action pending in San Mateo County ... it would

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be impracticable and futile to try this action . . . for the reason that said defendants contend that a disposition and determination of the action pending in San Mateo County would determine in substantial measure the issues pending in this action.”

Where complaints are filed in two counties involving the same subject of action the county in which summons is first served acquires jurisdiction of the entire controversy and the action in the other county is subject to abatement on the ground of another action pending.