Rosenfelt v. Scholtz

CRAIL, P. J.

This is an appeal by plaintiff from a judgment dismissing an action under section 583 of the Code of Civil Procedure, which provides (1) that the court may in its discretion dismiss any action for want of prosecution whenever plaintiff has failed for two years after the action is filed to bring such action to trial, and (2) that “any action . . . shall be dismissed . . . unless such action is brought to trial within five years after the plaintiff has filed his action, except where the parties have stipulated in writing that the time may be extended”. The contention of the plaintiff is that the order of the court dismissing the action was erroneous for the reason that the parties had entered into three stipulations in writing that the time might be extended. The stipulations were as follows: (1) “It is stipulated that the above entitled case may be set for trial at any time on or after the 14th day of December, 1932;” (2) “It is'hereby stipulated by and between counsel for the respective parties that the above entitled case may be reset for trial on any date subsequent to February 20, 1933, convenient to court and counsel. Notice of trial is not waived;” (3) “It is stipulated that the above entitled case may be set for trial at any time on or after the 27th day of October, 1933. Plaintiff to serve notice of tidal.” The words “the time” in the phrase of said section “except where the parties have stipulated in writing that the time may be extended” refers to the five-year limit in which an action must be brought to trial and has been called the “statutory” time.

(Miller & Lux, Inc.,

v.

Superior Court,

192 Cal. 333, at 338 [219 Pac. 1006, 1008].) And it has been said that the statute means that a dismissal shall be granted under the proper circumstances “except where, pursuant to a stipulation of the parties, a different limit has been fixed”.

(City of Los Angeles

v.

Superior Court,

185 Cal. 405, 409 [197 Pac. 79].) “An examination of the cases construing section

583, supra,

discloses that no case decided by this court has held that anything short of a written

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