Meier v. Superior Court

California Court of Appeal Nov 25, 1942 No. Civ. 3210Published

Before: Barnard

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Holding. The court held that a hearing on a motion to set aside a default judgment or a ruling on a demurrer does not constitute a 'trial' within the meaning of section 583 of the Code of Civil Procedure, which requires an action to be brought to trial within five years.

Issues

Whether a hearing on a motion to set aside a default judgment constitutes a 'trial' under section 583 of the Code of Civil Procedure.
Whether a ruling on a demurrer constitutes a 'trial' under section 583 of the Code of Civil Procedure.

Disposition. peremptory writ issued

Quotations verified verbatim against the opinion

“It seems to have been clearly held that a trial within the meaning of section 583 is a hearing and determination of the issues of fact involved and that a ruling on a demurrer is not sufficient to take a case out of the operation of that statute.”

“The latter proceeding is not in any respect a trial of issues raised, but it involves merely a consideration of whether a party is entitled to relief which will enable him to raise issues in the case.”

BARNARD, P. J.

This is a proceeding in prohibition to restrain the respondent court from proceeding with the trial of a certain action.

[676]

The action, in question was brought by the respondent Adolph Meier against these petitioners on February 4, 1937. A default judgment was entered against them on March 6, 1937. On April 15, 1937, they filed notice of a motion to set aside this default judgment, accompanied by their proposed answers. On October 18, 1937, the court entered an order granting this motion, setting aside the default judgment and allowing the proposed answers to be filed. Thereafter, demurrers to the answers were sustained with leave to amend. On February 21, 1939, amended answers were filed. On March 10, 1939, the plaintiff Adolph Meier filed demurrers to the amended answers. Nothing further was done until April 18, 1942, when these petitioners served and filed notice that on May 1, 1942, they would move the court to dismiss the action on the ground that the same had not been brought to trial within five years after the complaint was filed. A number of motions and orders followed which need not be here- set forth. The net result is that the court refused to dismiss the action and set the same for trial. This proceeding followed.

The respondent Adolph Meier contends that a “trial” includes all rulings of the court in passing upon the issues of a ease and that, therefore, the hearing and determination on October 18, 1937, of the motion to set aside the default judgment, and the later sustaining of demurrers to the first answers filed constituted a trial within the meaning of section 583 of the Code of Civil Procedure. It is not claimed that the parties have stipulated in writing for an extension of the period provided for in section 583 and, under such circumstances, the requirements of that section are mandatory.

(Superior Oil Co.

Superior Court,

6 Cal.2d 113 [56 P.2d 950].) It has frequently been held that a partial trial within the prescribed period takes the ease out of the operation of that section.

(Mercantile Invest. Co.

Meier v. Superior Court

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BARNARD, P. J.

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