Katleman v. Katleman

WOOD, P. J.

On motion of defendant the action was dismissed, pursuant to section 583 of the Code of Civil Procedure, on the ground that the action had not been brought to trial within five years after it was filed. Plaintiff appeals from the order and judgment of dismissal.

Plaintiff contends that the action was brought to trial within five years after it was filed.

The action was filed in Los Angeles County on December 8, 1950. Some of the allegations of the complaint were that the plaintiff and Jacob Katleman, now deceased, were divorced in Nevada on March 1, 1950; the decree of divorce approved a property settlement agreement between the parties; Jacob Katleman died on June 15, 1950; the plaintiff herein filed a creditor’s claim in the (probate) proceedings in the estate of said deceased, a copy of which claim is attached to the complaint; about November 10, 1950, the administrators of the

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estate rejected “plaintiff’s claim for that share of community property of deceased and plaintiff herein as she may be entitled to,” which community property may not have been disclosed or included in the property settlement; plaintiff alleges on information and belief that there is community property which was not disclosed to plaintiff when the property settlement agreement was made. The prayer of the complaint was that defendants be required to account for plaintiff’s share of the community property, and that defendants be ordered to approve her creditor’s claim with reference to her share of the community property.

Defendants (administrators) answered the complaint on April 6, 1951. They alleged, in part, that they did not have any community property of the deceased which was not properly revealed to plaintiff when the property settlement agreement was made; that if any of the codefendants have any additional community property, then the answering defendants admit that plaintiff would be entitled to a reasonable division of the community property so disclosed.

Upon motion of defendants (administrators), the action was set for trial on April 4, 1955, in Department 61, as a short cause matter. On April 4, 1955, when the case was called for trial in Department 61 by Judge Wolf son, counsel for each party answered “Beady.” Then the counsel for each party made a statement regarding the nature of the case. Counsel for plaintiff said that plaintiff wanted the court to rule “that the claim is good.” Counsel for plaintiff also said that the action was brought so that when, as, and if community property was discovered, plaintiff would be entitled to one-half of it. Plaintiff made a motion for judgment on the pleadings. The attorneys for the parties presented oral arguments with reference to the motion. The arguments, and the questions and comments of the judge, comprised approximately six pages of the reporter's transcript. On that day (April 4) the motion was submitted for decision. The minutes of that proceeding recite: ‘1 Cause called, argued and submitted. ’ ’ Thereafter briefs were filed by the parties. On April 20, 1955, the motion for judgment on the pleadings was “denied, without prejudice.”