Jackson v. De Benedetti

California Court of Appeal Jun 20, 1940 No. Civ. 11354Published

Before: Nourse

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Holding. The court held that the trial court did not abuse its discretion in dismissing the action for lack of diligent prosecution or in denying relief under section 473, as the plaintiff failed to provide sufficient excuse for the two-year delay in serving the summons.

Issues

Whether the trial court abused its discretion in dismissing an action for want of diligent prosecution.
Whether the trial court abused its discretion in denying relief under section 473 of the Code of Civil Procedure.
Whether the filing of a demurrer waives a defendant's right to move for dismissal for lack of prosecution under section 583.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The only limitation upon the exercise of the discretionary power of the court to dismiss a cause for delay in the service of summons is that it must not be abused.”

“It is the duty of a plaintiff at every stage of the proceedings to use due diligence to expedite his case to a final determination.”

“Upon this record we cannot state that the trial court abused its discretion upon either motion.”

NOURSE, P. J.

Plaintiff appeals from an order granting defendants’ motion to dismiss his action for want of diligence in prosecution and from another order denying

[576]

him relief under section 473 of the Code of Civil Procedure from the order first appealed from.

The action is one seeking damages for personal injuries arising out of an alleged assault on May 19, 1936. The complaint was filed on May 19, 1937, and summons was served on May 12, 1939. On June 29, 1939, defendants’ motion to dismiss for want of diligence in prosecution was heard upon affidavits filed by them, no counter affidavits having been filed by the plaintiff. Following the argument upon that motion the trial court granted plaintiff until August 1, 1939, to file affidavits in opposition to the motion. The order then entered read in part: ‘ ‘ Should counsel fail to file and serve his affidavits before said August 1, 1939, then said counsel is forbidden to file any affidavits in opposition to the motion to dismiss, and said matter is continued to August 1, 1939, at 10:30 A. M, Upon failure of filing affidavit, then said matters are ordered continued to August 15, 1939, at 10:30 A. M. for decision before Honorable T. W. Harris.” On August 1, 1939, the date to which said matter was continued for hearing, counsel for plaintiff failed to appear and the cause was regularly continued to August 14, 1939. On the latter date counsel for plaintiff again failing to appear the motion to dismiss was granted without further hearing or argument. On August 5, 1939, plaintiff filed his own affidavit alleging that the delay in the prosecution of the case was caused by his physical condition, and stating specifically that from May, 1936, to June, 1936, he required hospitalization, and again from April 15, 1937, to April 28, 1937, and from July, 1938, until September, 1938,

On September 14, 1939, plaintiff filed his motion for relief under section 473 of the Code of Civil Procedure. This was accompanied by the affidavits of two physicians, one stating that he had given the plaintiff professional treatment on July 26, 1938. The other that he had treated him for eight days in May, 1936, twelve days in April, 1937, and four days in May, 1938. Aside from the first treatment which was for a condition probably acquired from the injuries received in the alleged assault, the other treatments were for peptic or gastric ulcers.

Jackson v. De Benedetti

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NOURSE, P. J.

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