Bank of America v. Superior Court

WARD, J.

An alternative writ of mandate was issued in this proceeding to test the right to dismiss the complaint in an action by California Employment Commission (formerly Unemployment Reserves Commission), against petitioner herein, Bank of America National Trust and Savings Association, a national banking association. The ground of the petition is that the action was not brought to trial within five years after filing the complaint. (Code Civ. Proc., § 583.)

The complaint was filed February 6, 1942, and the cause set for trial June 24, 1947, leaving an intervening period of five years, four months and 18 days. The date of the filing of the motion to dismiss was June 19, 1947, just five years, four months and 13 days after the date of the filing of the complaint. Mandate was sought after petitioner’s motion had been denied.

Code of Civil Procedure, section 583 operates against the State of California.

(Superior Oil Co.

v.

Superior Court,

6 Cal.2d 113 [56 P.2d 950].) The section, so far as the present facts are concerned, provides that “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 [filed a stipulation] in writing that the time may be extended and except where it be shown that the defendant has been absent from the State or concealed therein and his whereabouts unknown to plaintiff and not discoverable to said plaintiff upon due diligence, in which event said period of absence or concealment shall not be a part of said five-year period.” Note that in 1947 the section was amended to provide that any stipulation of continuance shall be filed. There

[36]

are other provisions of the section, hut they are not pertinent to the facts presented.

Respondent urges that from the period of five years plus, there must be excluded two years and three days during which there was some doubt as to the jurisdiction of the court because there was some discussion relative to the possibility of bringing in additional parties. It is not incumbent upon this court in the present mandate proceedings to determine that question. Whatever the merits of that motion may be the superior court had jurisdiction to proceed to a trial of the ease when at issue from the date of the filing of the action, February 6, 1942, until respondent bank filed a motion, on October 28, 1943, to bring in other parties. It is apparently true that “when the trial court finds, or the record indisputably shows, that a ‘complete determination of the controversy cannot be had without the presence of other parties,’ such parties become necessary and indispensable parties and the section [Code Civ. Proe., § 389] is mandatory and the question then becomes one of jurisdiction in that the court may not proceed without bringing them in.”