DeMota v. Superior Court

PEEK, J.

Petitioners seek to restrain the respondent superior court from further proceeding in action number 3098 entitled “Harry Sears and Harry Sears, as Trustee, Nevada Investment and Finance Corporation, a corporation, as Trustee, Calaveras Cen'tral Mining Corporation, a corporation, and Calaveras Central Gold Mining Co., Ltd., a corporation, Plaintiffs,

versus

Clara P. DeMota, E. 0. Erickson, and E. 0. Erickson, as Trustee, First Doe, Second Doe, Richard Roe Company, and John Doe Company, Defendants” now pending in said court.

By their action plaintiffs sought to have certain promissory notes and deeds of trust, wherein Erickson was named as trustee and DeMota was named as beneficiary, adjudged satisfied and discharged and plaintiffs’ title to the trust deeded

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lands quieted as against the claims of said defendants. On March 23, 1954, petitioners herein filed their notice of motion to dismiss said action for lack of prosecution. The motion was denied on June 3, 1954, and on the same day respondent court set the cause for trial. Thereafter petitioners sought relief by prohibition in this court, alleging that approximately nine years and seven months had elapsed since said action number 3098 was filed on December 9, 1944; that during all of said time, except for the period from September, 1942, to October, 1945, when he was in the armed forces of this country, Erickson has been a practicing attorney, maintaining his offices in this state; that he was served with process in said action on October 14,1947, and that he entered his appearance on September 19, 1949; that the time elapsing between the date of the service on him and the filing of said petition in prohibition has been six years and approximately seven months; that at all times since the filing of said action 3098 DeMota has been a resident of the Dominican Republic; that she was served by publication of summons which was completed on November 28, 1947; that she first appeared by demurrer on September 19, 1949; that it has been six years and seven months since completion of service of process upon her by publication; that it has been four years and approximately 10 months since her appearance in said action to the date of the filing of said petition for prohibition; and that at all times since the last mentioned date she has been represented by an attorney of record. The petition further alleged that the parties had filed no stipulation in writing extending the time for trial and that the failure to proceed to trial has been caused solely by a lack of due diligence on the part of plaintiffs. Petitioners also charge that the same issues were raised and the same relief is being sought in said action number 3098 as was sought in two previous proceedings, one of which was dismissed and the other of which proceeded to final determination in the Supreme Court.