Muller v. Muller

GOOD, J. pro tem.

*

On January 9, 1953, plaintiff William Muller initiated an action for 11 cancellation of alleged forged deed; for cancellation of deed for fraud and deceit; to remove a cloud; and to quiet title.” Defendants Lelah Muller and Charles Reagh filed answer on October 27, 1954, alleging defendant Muller to be the legal and equitable owner of the real property in question, and incorporating a copy of a prior judgment (Action No. 58211) quieting .title thereto in said defendant. On July 11, 1955, defendants filed a memorandum to set the cause for trial and the court subsequently set trial for October 25, 1955. On October 20, 1955, defendants moved to abate the action until after the decision in the pending appeal from the above-mentioned judgment in Action Number 58211. The motion was granted. On June 5, 1958, plaintiff filed a memorandum to set the cause for trial. On October 24, 1958, defendants filed a notice of motion to dismiss based on section 583, Code of Civil Procedure (failure to bring action to trial within five years). Plaintiff thereupon filed “counter-notice” of motion to advance cause for trial and opposition to motion to dismiss. The court granted defendants’ motion to dismiss on November 18, 1958. Prom this order plaintiff now appeals.

Despite its mandatory language, the courts have held section 583 to be subject to certain implied exceptions in addition to the ones expressed therein. “Thus, the time during which ‘for all practical purposes, going to trial would be impossible, whether this was because of total lack of jurisdiction in the strict sense, or because proceeding to trial would be both impracticable and futile’ [case cited] must be excluded in computing the five-year period. ” (J.

C. Penney Co.

v.

Stiperior Court,

52 Cal.2d 666, 671 [343 P.2d 919] ; also

Union Bond & Trust Co.

v.

M & M Wood Working Co., ante,

p. 673 [3 Cal.Rptr. 920].)

[818]