People v. Superior Court

DOOLING, J.

Petition for writ of mandate to compel the trial court to dismiss an action pursuant to Code of Civil Procedure, section 583 for failure to bring the ease to trial within five years after the filing of the complaint. The complaint was filed January 14, 1942. A motion was made on October 30, 1947, to dismiss the action which was denied by the respondent court on November 5, 1947.

Under Code of Civil Procedure, section 583 the duty of the court to dismiss where the action has not been brought to trial within five years, unless the facts furnish a legally sufficient excuse for the delay, is mandatory and its performance may be enforced by writ of mandate.

(Miller & Lux, Inc.

v.

Superior Court,

192 Cal. 333 [219 P. 1006];

Bank of America

v.

Superior Court,

84 Cal.App.2d 34 [189 P.2d 799] ;

Elmhurst Packers

v.

Superior Court,

46 Cal.App.2d 648 [116 P.2d 487].)

The affidavit in opposition to the motion to dismiss shows the following: that prior to July 5, 1944, certain cases were pending in the Supreme Court involving questions of law which might be controlling in the instant case and that this case was dropped from the trial calendar at the suggestion of defendant’s attorney to await the decision of those cases; that those cases were decided on July 5, 1944; that there

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after on November 16, 1944, counsel for plaintiffs wrote a letter to the deputy attorney general in charge of the case for defendant suggesting a basis of compromise; that on November 27, 1944, this deputy replied by letter stating: “We shall look over our file in the above matter and advise you of our conclusions shortly”; that nothing further was heard from the office of the attorney general and on July 24, 1947, counsel for the plaintiffs wrote another letter to the attorney general’s office referring to his letter of November 16, 1944, and renewing the offer of compromise.