Matchett v. Ryerson

WHITE, P. J.

Plaintiffs Hatchett and Weisel appeal from the minute order of December 18, 1956, dismissing their respective actions which had been consolidated for trial. The actions were dismissed under the provisions of the Code of Civil Procedure, section 583, that actions “shall be dismissed ... . unless . . . brought to trial within five years after the plaintiff has filed his action, 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 . . .”.

The complaints in both actions are to foreclose mechanics’ liens on the same lands. All respondents are named as defendants in the complaint wherein it is alleged that the respondent Hildred Biddle and other named defendants are engaged in the real estate business under the “common names and styles of Hidden Hills Land Co. and Hansen Heights Land Co.”; that said respondents were at all times (along with the other named and unnamed defendants) the owners of the real property described in the complaint; that the lien recorded named defendant Thomas L. Ryerson as “owners and reputed owners” of said real property; and that the other defendants “have or claim an interest” therein. The prayers are for judgment for the amounts of the materials and labor employed upon the property plus the cost of recording the various liens, for the sale of the property and application of the proceeds to the payment of the judgments. The two actions from which these appeals were taken were consolidated for trial with other actions also seeking to foreclose liens on the same property.

The Hatchett complaint was filed August 20, 1951,

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5 years, 3 months and 28 days before it was dismissed. The Weisel complaint was filed May 23, 1951, five years, seven months and 25 days before its dismissal. The respondents’ defaults were entered in both actions on March 7, 1955. The defaults were set aside on August 25, 1955, and respondents’ answers were, in September, 1955, filed pursuant to stipulation. On April 16, 1956, appellants filed their setting memorandum.

The default judgments against the appellants existed from March 7, 1955, the date of their entry, until August 25, 1955, the date upon which they were set aside, or five months and 18 days. The actions could not have been tried during that time, and therefore it cannot be included in the “five years” pendency requiring their dismissal.