Elmhurst Packers, Inc. v. Superior Court

WARD, J.

Petitioner seeks a writ of mandate to compel the dismissal of an action for failure to bring it to trial within five years. (Code Civ. Proc., sec. 583.)

An action for breach of a contract for the sale of frozen peas was filed on April 28, 1936, and summons served on defendant, petitioner herein, on April 30, 1936. A demurrer to the complaint, served on or about May 27, 1936, was sustained with leave to amend. On or about June 9, 1937, an amended complaint was served and filed and a stipulation entered into between the parties that defendant should have ten days from and after written notice from plaintiff within which to demur or answer the amended complaint. On December 18, 1940, notice to demur or answer was so given, and on December 28, 1940, a demurrer by petitioner herein was filed, which was subsequently, on or about January 16, 1941, sustained, the plaintiff being given thirty days within which to amend its complaint. No further amended complaint appears of record. On or about May 3, 1941, shortly after the expiration of the five-year period, a motion to dismiss for want of prosecution was filed. This motion was denied.

The petitioner contends that the stipulation giving it, as defendant in said action, ten days after written notice to demur or answer the amended complaint, did not have the effect of extending the five-year period in which an action must be brought to trial. The effect of the stipulation was to relieve defendant from complying with the requirement to plead within ten days of service of the amended pleading. Plaintiff could have given the ten day notice at any time. Until the case was at issue it could not be brought to trial. Three years after the stipulation the notice was given by plaintiff.

The tendency of decisions is to give a strict construction to the second clause of section 583, Code Civ. Proc., which “makes a fixed and arbitrary rule that requires the performance of an ‘act which the law specifically enjoins.’ ”

(Andersen

v.

Superior Court,

187 Cal. 95, 98 [200 Pac. 963].) In

Romero

v.

Snyder,

167 Cal. 216, 220 [138 Pac. 1002], it was said that it was a legislative determination to fix “A maximum period of five years, upon the expiration of which,