Dowling v. Superior Court

NOURSE, P. J.

This is an original proceeding for a writ of mandate requiring the respondent court to dismiss as against the petitioner herein an action pending before said court entitled

Rose Le Mar

v. J.

A. Dowling et al.

[444]

The ground upon which the petition herein is based is that said cause was not brought to trial within five years after the filing of petitioner’s answer therein and that the dismissal prayed for is therefore mandatory under the provisions of section 583 of the Code of Civil Procedure.

The action entitled

Rose Le Mar

v.

J. A. Dowling et al.

was commenced in the Superior Court in the County of Marin on October 16, 1926. The complaint prayed for damages for personal injuries alleged to have been sustained by reason of a fall into a concrete sump constructed by Dowling in the course of the performance of a contract between Dowling and the town of Sausalito covering improvements to a public street in that town. The town of Sausalito and the American Indemnity Company (the surety upon Dowling’s contract) were joined as defendants in the action. The answer of Dowling was filed December 13, 1926, the answer of the American Indemnity Company was filed April 9, 1927. On July 11, 1927, the town of Sausalito filed its answer and a cross-complaint against Rose Le Mar alone in which it was alleged that the town, assuming that it had been in part liable for the injuries to the plaintiff, had compromised with her and had agreed to pay her $1,000, $700 of which had been paid. The cross-complaint then alleged that the town learned that the street work performed by Dowling had not been done according to the contract; that for this reason the town deemed itself not liable for any injuries suffered by the plaintiff; and because of these facts the town sought recovery from the plaintiff of the $700 paid to her under the agreement of compromise. Rose Le Mar filed her answer to this cross-complaint on January 29, 1932, after the petitioner herein had filed with the county clerk his motion to dismiss the action as to him for want of prosecution. In defense to that motion the plaintiff in the original action pleaded that she had agreed and stipulated with the town of Sausalito that the rights and liabilities arising between Dowling and said town could not be determined in that action until such rights had been adjudicated in another action brought by a taxpayer to determine the validity of the acceptance of the street work performed by Dowling under the contract with the town of Sausalito. Under this stipulation the plaintiff Le Mar was given until the final