Kadota v. City & County of San Fracisco

DOOLING, J.

Plaintiff appeals from a judgment of dismissal. The complaint in this action was filed on September 11, 1951. By written stipulation the time of trial was extended until May 11, 1957. On May 9, 1957, the parties regularly appeared in court for trial and a jury was impaneled and sworn. On May 10, 1957, which was a Friday, counsel for plaintiff asked the court to continue the case to Monday, May

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13, because, as he stated, he was too ill to proceed with the trial. Counsel for plaintiff was granted a continuance until May 13 in the face of a statement by counsel for defendant that if such continuance was granted counsel for defendant would move for a dismissal of the action under the mandatory five-year provision of section 583, Code of Civil Procedure. Such motion was made on May 13, 1957, and granted by the court.

The pertinent provision of section 583 reads:

“Any action . . . shall be dismissed . . . unless such action is brought to trial within five years after the plaintiff has filed his action, except where the parties have filed a stipulation in writing that the time may be extended ...”

Appellant argues that because the last day of the stipulated extension fell on a Saturday, a nonjudieial day, he had in any event until the next Monday, May 13, to bring the action to trial under section 583. We do not find it necessary to decide this question.

The cases are clear that where the trial is before the court, without a jury, the action is not ordinarily “brought to trial” until at least one witness is sworn and gives some testimony. (16 Cal.Jur.2d, Dismissal, § 33, p. 188; § 35, pp. 192-194.) However, the question has apparently never been presented whether under section 583, where the ease is set for trial before a jury, the case is “brought to trial” when the parties commence the examination of prospective jurors and the impanelment of the jury.

Our Supreme Court in

Silcox

v.

Lang,

78 Cal. 118, 124 [20 P. 297], said: