Legg v. United Benefit Life Insurance

FOX, J.

Plaintiff appeals from a judgment of dismissal on the ground that she did not bring her ease to trial within three years after the filing of the remittitur following the reversal of a prior judgment. She also appeals from the order denying her motion to vacate the said judgment. The action of the trial court was based on that portion of section 583, Code of Civil Procedure, which reads as follows:

“When in an action after judgment, an appeal has been taken and judgment reversed with cause remanded for a new trial . . . the action

must

be dismissed by the trial court, on motion of defendant after due notice to plaintiff, or of its own motion, unless brought to trial within three years from the date upon which remittitur is filed by the clerk of the trial court.” (Italics added.)

We have reached the conclusion that the decision of the trial court is correct.

[895]

Plaintiff filed this action on March 5, 1948. She sought to recover indemnity under a health and accident policy for injuries suffered by her in an accident which occurred on February 6, 1947, while she was attempting to board a streetcar. The case was tried before a jury resulting in a verdict for defendant. On appeal to this court, the judgment was reversed. (See

Legg

v.

United Benefit Life Ins. Co.,

103 Cal.App.2d 228 [229 P.2d 454].) The remittitur was filed with the clerk of the court below on June 5, 1951. Between this date and May, 1954, plaintiff filed amended and supplemental complaints, issue being joined on the sixth such pleading. During this latter month plaintiff gave notice of a motion for an early setting based on the ground that unless the trial was commenced prior to June 5, 1954, the case was likely to be dismissed for failure to bring it to trial within three years from the date the remittitur was filed. The motion for early setting was heard in Department 1 on May 28th, just five court days before the expiration of the statutory period. The motion was granted and the case was set for trial on September 8, 1954, the court stating, according to plaintiff’s brief, that “in view of the crowded condition of the court calendar” this was “the earliest possible date available.” On the latter date the case was continued to September 10th due to congestion of the calendar. Upon the matter being transferred to Judge Moroney, defendant made its motion to dismiss on the ground that the case had not been brought to trial within three years after the filing of the remittitur as required by section 583, Code of Civil Procedure. The court granted the motion. It is from the ensuing judgment that plaintiff appeals.