Jepsen v. Sherry

BARNARD, P. J.

This action was brought on September 14, 1946, to recover a balance due on an oral building contract, and to foreclose a lien on defendants’ property. A cause of action on

quantum meruit

was included by amendment. The record shows the following proceedings: A demurrer • was filed on October 11, 1946, and an amended complaint December 22, 1947. . A demurrer filed on January 2, 1948, was amended January 23, and sustained with leave to amend on February 13. A second amended complaint was filed on March 9, a demurrer March 18, and an amended demurrer on April 7. On June 16, 1948, an answer was filed. On July 6, the plaintiff filed a request to have the case set for-trial, and on July 8 the defendants demanded a jury. • The court set the case for trial on May 26, 1949.

On May 20, 1949, the defendants served and filed notice of á motion to dismiss the action for failure to prosecute, under sections 583 and 1190 of the Code of Civil Procedure, in that it had not been brought to trial within two years. At the same time they noticed a request for permission to filé "an attached amended answer and a cross-complaint. Both motions were noticed for May 26, the day the action was to be tried. The court granted the first motion and entered a judgment dismissing the action “but without prejudice to such other actions, if any there be, legally available to plaintiff.” This appeal followed.

It is well settled that a court has an inherent and statutory power to dismiss an action for a failure to prosecute it with diligence; and that its action should not be disturbed unless an abuse of discretion clearly appears. However, the two years mentioned in these statutes is not an arbitrary limit to be followed in all cases, but was intended as a general guide in determining whether or not a “want of prosecution”

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appears and, if so, whether this power should be used in view of the entire situation. This discretion is one controlled by legal principles and is to be exercised in accordance with the spirit of the law and with a view to subserving, rather than defeating, the ends of substantial justice.

(Raggio