Rose v. Knapp

GIBSON, C. J.

This appeal involves the propriety of the trial court’s dismissal of a quiet title action pursuant to a motion made by defendants June Knapp and Mattie Hye on the ground that plaintiff had failed to bring the action to trial within five years after the filing of the complaint and that dismissal was mandatory under section 583 of the Code of Civil Procedure.

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More than 20 years ago, in 1929, Lorn Betty, plaintiff’s predecessor, recovered a money judgment against Ellen Crowder and her son, E. W. Knapp. Betty then brought an action to set aside an alleged fraudulent conveyance of real

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property to June Knapp, wife of E. W. Knapp, and in September, 1932, obtained a judgment which provided that he should have a lien upon the property and directed that execution should issue accordingly. (See

Betty

v.

Knapp,

5 Cal. App. 2d 512 [43 P.2d 325].) The real property was sold to Betty on execution, and the judgment was satisfied of record, but in August, 1937, the court granted a motion to revive the judgment on the ground that the sheriff’s sale was void. (See

Betty

v.

Superior Court,

18 Cal.2d 619 [116 P.2d 947].) The judgment was thereafter assigned to plaintiff Rose who obtained an alias writ of enforcement and purchased the property at public auction. The present quiet title action was commenced by Rose on July 16, 1943, and the trial was set for June 21, 1944, but after a continuance counsel stipulated on October 20,1944, that the cause should go off calendar.

On January 18, 1945, the Knapps instituted an action to annul the writ of enforcement under which the real property had been sold and upon which plaintiff’s title is predicated. Judgment was entered in favor of the Knapps on May 15, 1946, annulling the writ of enforcement and cancelling the certificate of sale and the deed issued thereunder. This judgment was subsequently reversed on appeal, and the writ was held to be valid, by an opinion which became final on October 2, 1948.