Mercantile Finance Corp. v. Hucke

NOURSE, P. J.

This is an appeal from an order dismissing the action made under section 583 of the Code of Civil Procedure for want of prosecution within two years after answer filed.

The complaint (to foreclose a mortgage on real property) was filed June 10, 1927, against thirty-five defendants. The last answer was filed October 7, 1927. The default of seven defendants was entered and the plaintiff voluntarily dismissed as to all except Sorrille. The cause was set for trial on April 26, 1929, but went off the calendar. On October 31, 1929, plaintiff gave notice of motion to set the cause for trial and August 12, 1930, was set for that purpose. At that time the defendant Sorrille moved to dismiss the action upon the ground that plaintiff had failed to bring it to trial within two years after the answer was filed. This motion was granted.

Appellant’s attack upon the order is based on the ground that the trial court abused its discretion in granting the motion. Discretion in this respect is exercised on determining the issue of fact whether the plaintiff’s failure to bring the cause to trial within the two-year period is excused. Where the evidence on this issue is conflicting, the appellate courts cannot interfere with the order unless the whole record shows a

clear

abuse of discretion. Here the appellant cites some circumstances tending to excuse its neglect over a part of the period only. The evidence as a whole, however, discloses that for more than

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two years after respondent’s answer was filed appellant’s neglect was inexcusable.

The order is affirmed.

Sturtevant, J., and Spence, J., concurred.