Smithers v. Ederer

AGEE, J. pro tem.

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Defendant appeals from a summary judgment granted more than five years after the commencement of the action and over the objection of defendant who contended that dismissal of the action was mandatory under section 583 of the Code of Civil Procedure.

The action was filed on June 15, 1949. It alleged that plaintiff had loaned defendant $5,000 and prayed for judgment in this amount plus interest from November 26, 1947. The defendant alleged in his answer that plaintiff had advanced the $5,000 as an investment in a theatrical production being produced by defendant; that their understanding was that if said production was successful, plaintiff was to receive back the $5,000, without interest, plus a one-half interest in the

profits;

that if the production was unsuccessful, plaintiff was to get back $2,500 only, without interest; that the production was unsuccessful and, as the result, defendant was indebted to plaintiff in the sum of $2,500, without interest. Defendant prayed “that plaintiff have judgment only for the unpaid indebtedness admitted herein.”

On July 27, 1954, defendant filed a motion to dismiss on the ground that the action had not been brought to trial within five years after being filed. (Code Civ. Proc., § 583.) While this motion was pending plaintiff filed a motion for

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judgment in the amount of $2,500 which defendant admitted was owing and for an order severing the remainder of the claim and ordering the action to proceed as to such remainder. (Code Civ. Proc., § 437c, last paragraph.) In his motion plaintiff stated that if the court was of the opinion that a trial could not be had as to the remaining amount claimed by him, he waived

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all claim and demand for judgment over the amount of money that the defendant has admitted by his verified affidavit and answer is now due, owing and unpaid to the plaintiff.” The court thereupon granted plaintiff a judgment for $2,500 but denied his motion to proceed as to the remainder of such claim. It also denied defendant’s motion to dismiss. The minute order entered by the court refers to plaintiff’s waiver of any additional claim. It is apparent that the court accepted such waiver upon the condition specified by plaintiff, i.e., that the court was of the opinion that a trial could not be had as to any disputed issue. Such an opinion must necessarily rest upon section 583 of the Code of Civil Procedure, which provides that an action shall be dismissed unless it is brought to trial within five years after being filed. Thus, although the record shows a denial of defendant’s motion under section 583, which was addressed to the entire action, the effect of the court’s order was to dismiss and terminate the action except as to the amount which defendant had admitted in this answer was due and owing.