Inderbitzen v. Lane Hospital

TYLER, P. J.

Appeal from a dismissal of an action for failure to use due diligence in the prosecution thereof. The motion to dismiss was addressed to the inherent discretionary power of the court and was granted under that power. It is appellants’ claim that the court had no jurisdiction to grant the motion. This contention is based upon the last sentence of section 583 of the Code of Civil Procedure, which provides: “When in an action after judgment, an appeal has been taken and judgment reversed with cause remanded for a new trial, (or when an appeal has been taken from an order granting a new trial and such order is affirmed on appeal), the action must be dismissed by the trial court, on motion of defendant after due notice to plaintiff, or of its own motion, unless brought to trial within three years from the date upon which

remittitur

is filed by the clerk of the trial court.” Appellants argue that the mandatory portion of the section compelling a dismissal after the three-year period deprives the court of the power of dismissing the action for any delay amounting to a shorter period than that which under the statute gives a defendant an absolute right of a dismissal. The record discloses that this action was brought against defendant hospital for injuries alleged to have been sustained by plaintiff Julia Inderbitzen while she was being delivered of a stillborn child in defendant institution, which injuries are alleged to be due to malpractice by defendants and their servants. Special damages were claimed by her husband in procuring subsequent medical care.

The action was commenced July 19, 1926. More than four years thereafter the case was brought to trial. At the conclusion of plaintiffs’ case the court granted a motion of defendants for a nonsuit. A new trial was denied and plaintiffs appealed. The judgment was reversed. (Inder

bitzen

v.

Lane Hospital,

124 Cal. App. 462 [12 Pac. (2d) 744, 13 Pac. (2d) 905].) A petition by respondents for a rehearing was made and denied, and a petition for transfer

[105]

was denied by the Supreme Court August 22, 1932. The