Koehler v. Peckham

GOULD, J.,

pro

tem.

These two cases, consolidated for hearing upon appeal, involve the sole question of the legal correctness of the ruling of the lower court in each ease granting a motion to dismiss and entering a judgment of dismissal upon the ground that said actions had not been brought to trial within five years after answers filed. Inasmuch as precisely the same question is involved in each case, the only difference between the actions relating to the slight variation in dates when the various papers were filed, it will be sufficient to state the chronology of case No. 10679.

Complaint was filed in the superior court July 21, 1928; answer of defendants was filed May 9, 1930; action was set for trial on its merits for July 7, 1932, and on that date went off calendar; defendants filed notice of motion, dated November 22, 1932, to dismiss for failure to bring to trial within two years after answer filed, which motion went off calendar without hearing.

Thereafter, on August 7, 1935, more than five years after answer filed and seven years after action filed, plaintiff and defendants through their respective attorneys of record entered into the following written stipulation, filed August 15, 1935: “It is hereby stipulated that the above entitled ease may be set for trial at any time on or after the 9th day of September, 1935. Counsel further request and stipulate that said cause be set on the same date as case No. 290-097, entitled

Koehler

v.

Peckham,

is set for, as practically the same parties are involved and the same counsel appear as herein,

[483]

A similar stipulation to set for trial in said case is being filed as herein. ’ ’

Thereafter the case was set for trial for September 12, 1935, but on August 28, 1935, counsel for defendants served and filed notice of intention to dismiss for failure to bring the ease to trial within five years “after answer filed”, which motion was granted and the judgment of dismissal entered from which plaintiff now appeals.