Stults v. Thompson

STONE, Acting P. J.

Plaintiff appeals from judgments of dismissal entered as to all defendants pursuant to motions under Code of Civil Procedure section 583 to dismiss for failure to bring the action to trial within five years after the complaint was filed.

Preliminarily, we note that plaintiff appears to argue that section 583 is unconstitutional and void because it violates the

[734]

due process clause of the Fourteenth Amendment to the Constitution of the United States, a point considered, and rejected as without merit, in

Muller

v.

Muller,

179 Cal.App.2d 815, 819 [4 Cal.Rptr. 419].

Two exceptions are provided in the statute, one “where the parties have filed a stipulation in writing that the time may be extended” and, the other, “where it be shown that the defendant has been absent from the State or concealed therein and his whereabouts unknown to plaintiff and not discoverable to said plaintiff upon due diligence, in which event said period of absence or concealment shall not be a part of said five-year period. ’ ’

Plaintiff does not assert either exception under section 583; rather, this court is asked to create a judicial exception to the mandatory five-year dismissal provision of the code section.

The facts are these:

March 12, 1963,

Jeanie H. Stults filed a complaint against Calvin A. Thompson, Frances N. Thompson, and fictitiously named defendants, to quiet title to real property in Kern County.

November 29, 1963,

present counsel were substituted as plaintiff’s attorneys.

January 16, 1964,

a first amended complaint was filed, alleging causes of action to quiet title and cancel certain instruments, for slander of title, and to recover compensatory and punitive damages. This pleading named Semitropic Water Storage District and seven directors thereof as additional defendants. Summons was issued on the amended complaint and served on the new parties.