Perrin v. Miller

[130]

HART, J.

The appeal is by the plaintiff from a judgment of dismissal because of his failure to bring the action to trial within five years after the answer was filed, pursuant to the provisions of section 583 of the Code of Civil Procedure. Said section, so far as applicable here, reads:

“ . . . Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced or to which it may be transferred on motion of the defendant, after due notice to plaintiff or by the court on its own motion, unless such action is brought to trial within five years after the defendant has filed his answer, except where the parties have stipulated in writing that the time may be extended.”

The complaint in this action was filed on October 20, 1908, and the answer and cross-complaint on January 5, 1909. A demurrer to the answer and cross-complaint was filed on February 1, 1909, more than six years before the motion to dismiss the action was made. While the record discloses the fact that said demurrer was overruled, it does not show at what date such action was taken, but it is stated in respondents’ brief that it occurred more than five years before the making of the motion to dismiss.

Said motion to dismiss the action was heard upon affidavits. C. E. McLaughlin, attorney for defendants, whose affidavit was dated May 14, 1915, deposed that at no time since the answer was filed had any stipulation been entered into, in writing or otherwise, extending the time in which said action might be brought to trial; that, in September, 1913, affiant and A. E. Bolton, attorney for plaintiff, had a conversation in substance as follows: That said Bolton said to affiant: “We must arrange to try the case of

Perrin

v.

Miller.

It should have been tried before this, but Perrin has had so much trouble with the government, and has been so annoyed, and so much of my time has been taken up in connection with his difficulties, that we have never seen our way clear to try the case”; that affiant replied to said statement: “We are ready to try the case at any time, but a date must be fixed which will not interfere with my other engagements.”