Barry v. Learner

California Court of Appeal Apr 27, 1931 No. Docket No. 7506.Published

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Holding. The trial court did not abuse its discretion in dismissing an action for want of prosecution under the two-year provision of section 583 of the Code of Civil Procedure, as the plaintiff failed to show diligence and the defendants' prior procedural accommodations did not constitute a waiver of their right to seek dismissal.

Issues

Whether an order refusing to vacate a final judgment is appealable when the grounds were available prior to the judgment.
Whether the trial court abused its discretion in dismissing an action for want of prosecution under the two-year provision of section 583 of the Code of Civil Procedure.
Whether the illness or death of a plaintiff's attorney constitutes a valid excuse for failure to prosecute an action.

Disposition. affirmed

Quotations verified verbatim against the opinion

“an order refusing to vacate a final judgment is not appealable if the grounds upon which the party sought to have the same vacated existed before the entry of the judgment”

“it is the plaintiff upon whom rests the duty to use diligence at every stage of the proceeding to expedite his case to a final determination.”

[653]

THE COURT.

Plaintiff brought this action to recover the sum of $9,500 claimed to be due as commissions in connection with the sale of a ship. The complaint was filed on August 18, 1925, and defendants answered on December 9, 1925. Four years later and on December 7, 1929, pursuant to a motion made by the defendants for such purpose, the trial court dismissed the action upon the ground that the same had not been brought to trial within the statutory period of two. years after the answer had been filed, as required by section 583 of the Code of Civil Procedure, prior to its amendment in 1929 (Stats. 1929, p. 683), and from the judgment of dismissal entered thereon plaintiff took an appeal.

After taking the appeal plaintiff moved to vacate the judgment of dismissal. The motion was heard and denied; and plaintiff has appealed also from the order made in that behalf. It is a general rule, however, that an order refusing to vacate a final judgment is not appealable if the grounds upon which the party sought to have the same vacated existed before the entry of the judgment and were available on an appeal from the judgment, the main reason for the rule being that if such an appeal were allowed it would be virtually allowing two appeals from the same ruling, one from the judgment and the other from the negative action of the court declining to disturb the judgment (2 Cal. Jur. 164). All of the matters urged in support of the motion to vacate were available to plaintiff at the time the motion to dismiss was heard and determined, and most of them were presented therein. The appeal from the order denying the motion to vacate is therefore dismissed.

The appeal from the judgment of dismissal is taken on a bill of exceptions and the following facts appear therefrom : After the answer was filed on December 9, 1925, plaintiff did nothing to bring the action to trial until November 25, 1927, at which time he served notice of motion to set the cause for trial; and on December 2, 1927, an order was made fixing March 14, 1928, as the date of trial; but prior to March 1, 1928, plaintiff requested a continuance, and in response thereto defendants’ attorneys wrote plaintiff’s attorneys that it would “be satisfactory” to their clients “to drop the above cause from the trial calen

[654]

Barry v. Learner

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THE COURT.

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