Vladu v. State of California

[51]

VAN DYKE, P. J.

This is an appeal from an order dismissing a proceeding brought by appellants to recover es-cheated funds.

Appellants claim to be the heirs at law of one Theodor Vulcan, who died intestate March 28, 1948, in Alameda County. Because no heirs appeared to claim the estate during probate, it was ordered distributed to the State of California, pursuant to section 1027 of the Probate Code. Petitioners are residents and citizens of Roumania, and commenced the proceeding to recover the escheated funds pursuant to section 1353 of the Code of Civil Procedure. Their petition was filed February 11, 1953, and after various intermediate proceedings in the cause, the answer of the state was filed, putting in issue generally the allegations of the petition. More than five years having elapsed since the proceeding was begun without its having been brought to trial, the state moved to dismiss the same under the provisions of section 583 of the Code of Civil Procedure. The motion was granted and the proceeding ordered dismissed. This appeal followed.

The sole issue raised is the applicability of section 583 of the Code of Civil Procedure, it being the contention of appellants that the section is not applicable and, therefore, that the dismissal was unauthorized.

Appellants argue as follows: Proceedings to recover escheated estates are provided for in section 1353 of the Code of Civil Procedure which is found in part 3 of the code, entitled: “Of Special Proceedings of a Civil Nature”; this type of proceeding is to be distinguished from an action; an action is a proceeding “by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense” (Code Civ. Proc., § 22); “every other remedy is a special proceeding (Code Civ. Proc., § 23); the remedy sought here is other than that defined as an “action” and must therefore necessarily- be a “special proceeding”; since there is nothing criminal about this proceeding it is, therefore, a special proceeding of a civil nature; section 583 of the Code of Civil Procedure provides, so far as here pertinent “. . . any action . . . shall be dismissed . . . ”; since section 583 by its terms relates to actions, and since this is not an action, but a special proceeding, the section has no application and the order of the court was unauthorized.