Ewell v. Superior Court

[630]

LANGDON, P. J.

The petitioner seeks a writ of mandate to compel the superior court in and for the city and county of San Francisco to dismiss two actions pending there, wherein the petitioner is defendant and appears as his own attorney. Motions to dismiss these actions were heard by the superior court and denied.

It appears on the face of the petition that a stipulation was entered into in each action that the cause might be dropped from the trial calendar to be set by either party upon notice, “and laches on the .part of either party in bringing said action on for trial is hereby waived.” The actions were originally filed in July, 1916. They were numbered 75,129, 75,130. The former was tried in the superior court, and the judgment, later, set aside and a new trial granted. It was not retried, however, and an amended complaint was filed in 1919, substituting the trustees of the Banner Motion Picture Company, which had forfeited its charter, as plaintiffs therein. An answer to the amended complaint was filed. The other action was never tried, but answer had been filed therein. The stipulations hereinbefore referred to were entered into by the parties on June 6, 1919. Nothing further was done until June 25, 1924, after the stipulations had been in force and effect for more than five years, when petitioner served the attorneys for the plaintiffs with notice of revocation of said stipulation. On July 18, 1924, petitioner served notice of motions to dismiss said actions under the provisions of section 583 of the Code of Civil Procedure, upon the ground that said actions had not been brought to trial within five years after the filing of the answers therein, said motions to be heard upon July 25, 1924. On July 19, 1924, the plaintiffs served notice that on July 25, 1924, they would move the court for an order setting the actions for trial. The hearing of all the motions was continued until August 15, 1924, when the motions to dismiss were denied upon the ground that the parties had entered into a written stipulation extending the time allowed under section 583 of the Code of Civil Procedure, and the actions were set for trial.

In the case of

People

v.

Pratt,