Clements v. Ragghianti

DOOLING, J.

Plaintiffs appeal from a judgment of dismissal entered pursuant to Code of Civil Procedure, section 583.

The action was commenced on May 23, 1951. On May 17, 1956, the action came on regularly for trial against respondent Bechtel and the following proceedings occurred:

After the opening statement counsel for Bechtel moved for a nonsuit on the ground that the complaint did not state a cause of action against him. It was suggested by the court that the parties submit briefs on the question of whether evidence could be introduced under the pleadings.

Appellants’ attorney stated: “We can’t brief it, if Tour Honor please, because five days from now this action is beyond the five year period.”

After further discussion the following exchange occurred:

“The Court: I know. You must bring it to trial. You are bringing it to trial now.

“Mr. Culp : This is the trial.

“The Court: You are.

“Mr. Culp : That’s why I am making a motion for nonsuit.

“The Court: You are bringing it to trial. And the passage of time doesn’t affect you here, once I take hold.

“Mr. Culp: Right.

“The Court: And I am taking hold here.

“Mr. Bowman: May we then, before we are required to brief that point, at least start the evidence so that we will have started the trial ?

“The Court: No, Counsel, I think that we want to clear the decks and make—I’d like to cite that Latin maxim Festina lente, make haste slowly. Let’s make haste slowly, yes.

“Mr. Culp: I’m sure that’s the best way to save time in this case.”

Appellants’ attorney then received permission to amend the complaint.

Appellants’ attorney stated: “And I understand, then, the

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