Smith v. Wiget

California Court of Appeal Aug 1, 1946 No. Civ. 13098Published

Before: Peters

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Holding. The court held that the trial court did not abuse its discretion in dismissing an action for failure to bring it to trial within two years of filing, as the appellant failed to provide a record demonstrating error or abuse of discretion.

Issues

Whether the trial court abused its discretion in dismissing an action for failure to prosecute under section 583 of the Code of Civil Procedure.
Whether the filing of a memorandum to set a cause for trial after the expiration of the two-year period automatically voids a pending motion to dismiss.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The statutory period commences to run from the filing of the original complaint and not from the filing of any subsequent amended complaint.”

“It is elementary that an appellate court will never indulge in presumptions or inferences to reverse a judgment or order.”

“The duty rests upon the plaintiff at every stage of the proceeding, to use diligence and to expedite his case to final determination.”

PETERS, P. J.

Plaintiff appeals from an order of the trial court made on a noticed motion of defendants dismissing his action on the ground that it was not brought to trial within two years of the date it was filed. Plaintiff failed to file any counteraffidavits in the court below, and no reporter’s transcript has been filed, the appeal being prosecuted on a clerk’s transcript.

The motion to dismiss was made under section 583 of the Code of Civil Procedure, which, so far as pertinent here, reads as follows: ‘ ‘ The court may in its discretion dismiss any action for want of prosecution on motion of the defendant and after due notice to the plaintiff, whenever plaintiff has failed for two years after action is filed to bring such action to trial. ...”

The pertinent dates are as follows:

March, 22,

1943—original complaint filed.

June 30,

1943—demurrer to complaint filed.

July 12, 1943 (filed July 13,

1943)—order made sustaining demurrer with leave to amend.

July

28,1943—first amended complaint filed.

September 7,

1943■—demurrer to first amended complaint filed.

September 13,1943 (filed September

15,1943)-—order made overruling demurrer as to first cause of action, with leave to amend.

September 21,

1943—second amended complaint filed.

[593]

October 23,

1943—answer to first cause of action filed, and demurrer to second cause of action.

November

Smith v. Wiget

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PETERS, P. J.

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