Hastings v. Superior Court

THE COURT.

The showing made by petitioner is that on August 2, 1949, an action was filed in the Superior Court of Riverside County entitled

George H. Gobruegge

v.

J. M. Hastings.

About October 19, 1949, an answer and cross-complaint were filed. Counsel for plaintiff subsequently filed a memorandum moving to set the cause for trial, and it was subsequently set for September 2, 1953, but it was not then tried. On that date it was continued by a written stipulation of the parties agreeing “that the above-entitled action, set for trial September 2d, 1953, be reset for some convenient date, due to conflict of litigation on the part of both attorneys.” Apparently no endeavor was made subsequently to set the case for trial by either party. On September 7, 1954, more than five years after the action was filed, defendant and cross-complainant filed a notice of motion to dismiss the action under

[257]

section 583 of the Code of Civil Procedure, upon the ground that it had not been brought to trial within five years after the filing of the complaint.

On November 12, 1954, the respondent court made its order denying said motion “provided that, within 20 days hereof, the plaintiff file a memo of motion to set cause for trial.” On November 19, 1954, plaintiff filed such a memorandum and the court set January 20,1955, as the time for trial. This writ is sought to prevent any further proceedings upon the grounds stated in said action except to dismiss the same upon the grounds stated.

In opposition to the motion in the trial court plaintiff claimed that ever since the action was filed counsel for the respective parties had numerous negotiations to settle the action out of court and that it would be unjust and inequitable to grant the motion. There is no contention that during the entire period the parties and their counsel were absent from the state or that they concealed themselves therein. In opposition to this writ, respondent now contends that the order of the trial court should be sustained since there was a written stipulation filed extending the time for trial; that five years had not expired from the date of filing the action to the date of trial because the court actually set the case for trial on September 2, 1953, within that period; that plaintiff was prevented from setting the ease for trial for causes beyond his control; that the continuance of the date of trial from September 2,1953, was at the specific request of defendant and he should be estopped from taking unfair advantage of his own acts.