De Roode v. County of Placer

SCHOTTKY, J. pro tem.

This is an appeal from an order dismissing an action for failure to bring it to trial within five years.

The record shows that on March 6, 1946, plaintiff and appellant filed a complaint in Nevada County against the county of Placer to recover damages alleged to have been caused to a tunnel and water supply by the removal of bedrock.

On April 13, 1946, the county of Placer filed a demurrer and a notice of motion for change of place of trial from the county of Nevada to the county of Placer. On April 19, 1946, the motion for change of place of trial was granted. On June 26, 1946, plaintiff filed his first amended corn-

[860]

plaint for same relief. On July 6, 1946, the county demurred to the amended complaint. On September 18, 1946, the demurrer to the first amended complaint was sustained and 10 days granted to amend. On November 8, 1946, plaintiff filed his second amended complaint for the same relief. On November 18, 1946, the county again demurred to the second amended complaint and also gave notice of a motion to strike portions of the second amended complaint. On April 2, 1947, the court again sustained the demurrer and granted plaintiff “15 days, after notice, within which to file an amended complaint.” On February 24, 1951, nearly four years after the demurrer was sustained to the second amended complaint, plaintiff, by his present attorney, filed a third amended complaint. On March 6, 1951, the county demurred to the third amended complaint, gave notice of motion to strike and to dismiss the action for failure to prosecute. On August 7, 1951, the motion to dismiss was granted, and this appeal followed.

The portion of section 583 of the Code of Civil Procedure applicable to the instant appeal reads as follows:

“. . . Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced or to which it may be transferred on motion of the defendant, after due notice to plaintiff or by the court upon its own motion, unless such action is brought to trial within five years after the plaintiff has filed his action, except where the parties have filed a stipulation in writing that the time may be extended and except where it be shown that the defendant has been absent from the State or concealed therein and his whereabouts unknown to plaintiff and not discoverable to said plaintiff upon due diligence, in which event said period of absence or concealment shall not be a part of said five-year period.”