Stuart v. Hollywood Turf Club

FOX, J.

Plaintiff appeals from an order dismissing his case because he did not bring it to trial within five years.

The complaint was filed April 13, 1950. A demurrer was

[262]

sustained June 20, 1950, with leave to amend in ten days. First amended complaint was filed November 26, 1954. Demurrer was sustained to this pleading, but with permission to amend, on January 7, 1955. Second amended complaint was filed on January 12th. Demurrer was sustained to counts 2 and 4 with leave to amend on February 9 and overruled as to the other counts. On March 28, 1955, plaintiff elected not to amend counts 2 and 4. Defendants filed an answer to the other counts the next day. On April 5, 1955, plaintiff filed notice of motion to set the case for immediate trial. This motion was denied two days later, which was the fifth court day prior to the expiration of the five-year period. (Code Civil Proc., § 583.)

1

A notice of appeal from this ruling was filed April 12, 1955. The purported appeal was dismissed by this court in January, 1956, on the ground that the order was nonappealable. In the meantime the case was set for trial on December 8, 1955. However, defendants’ motion to dismiss was granted on November 28. This was more than five years and seven months after the complaint was filed. It is therefore apparent that the dismissal was proper unless plaintiff can bring his case within one of the exceptions stated .in section 583, or within one of the implied exceptions developed by the decisions

2

for the statute is mandatory where applicable.

(Andersen

v.

Superior Court,

187 Cal. 95, 97 [200 P. 963];

Pacific Greyhound Lines

v.

Superior Court,

28 Cal.2d 61, 63 [168 P.2d 665].) Plaintiff does not rely on any of the expressly enumerated exceptions in the statute. Rather he relies on the principle that, in computing the five-year period, the time during which, for all practical purposes, going to trial would either be impossible or impracticable and futile, is to be excluded.