Adams v. Superior Court

McCOMB J.

This is a petition for a writ of mandate directing respondent superior court to dismiss an action brought against petitioner (hereinafter termed defendant) by the real party in interest, A. G. Maspero, as administrator of the estate of John G. Gerstacker, deceased (hereinafter termed plaintiff), to quiet title and cancel a deed.

Chronology

1. April 13, 1954, the action was commenced.

2. June 4, 1954, a demurrer to the complaint was sustained and plaintiff given leave to amend.

3. June 24, 1954, first amended complaint was filed.

4. August 3, 1954, a demurrer to the first amended complaint and a motion to strike were overruled.

5. August 10, 1954, an answer to the first amended complaint was filed.

6. June 24, 1955, defendant filed a memorandum requesting that the case be set for trial.

7. July 5, 1955, plaintiff objected to having the cause set for trial. The objection was overruled and the cause set for trial on December 21, 1955.

8. December 21, 1955, the cause was called for trial. Both sides answered ready, and the ease was assigned to a trial department. In the trial department counsel for plaintiff called the attorney for defendant as a witness for the purpose of showing grounds for a continuance. No testimony was taken on the issues of the cause, and subsequently, upon motion of plaintiff’s counsel, the matter was continued to March 26, 1956, for trial.

9. Thereafter, on plaintiff’s motion, the case was continued for trial, over defendant’s objection, to June 16, 1956, February 4, 1957, and June 3, 1957.

10. May 21, 1957, defendant filed a motion, returnable on June 3, 1957, to dismiss the action, on the ground that more than three years had elapsed since the commencement of the action.

11. June 3, 1957, defendant’s motion to dismiss the action was denied. On plaintiff’s motion for a continuance, the trial of the action was continued to December 2, 1957.

12. November 13, 1957, plaintiff filed a motion, returnable

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