Crum v. Superior Court

California Court of Appeal Sep 28, 1932 No. Docket No. 4776.Published

Before: Thompson

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Holding. The court held that the trial court was required to dismiss the action because the plaintiff failed to bring the case to trial within five years of the defendant's answer, and no written stipulation existed to extend that statutory period.

Issues

Whether the trial court must dismiss an action under Code of Civil Procedure section 583 when more than five years have elapsed since the filing of the answer without a written stipulation for extension.

Disposition. Peremptory writ of mandamus issued

Quotations verified verbatim against the opinion

“Under the circumstances of this case it became mandatory for the court to dismiss the action for the reason that more than five years elapsed without any written consent for a continuance on the part of the defendant”

“It has been held that a stipulation which will suffice to extend the statutory time for bringing the cause to trial, must be reduced to writing and signed by the attorneys for the respective parties to the action.”

THOMPSON (R. L.), J.

This is a petition for a writ of

mandamus

to compel the dismissal of an action under the provisions of section 583 of the Code of Civil Procedure,

[472]

for failure, on the part of the plaintiff, to bring the cause to trial for more than five years after the issues are settled.

December 5, 1925, a complaint for an action in

assumpsit

was filed in the Superior Court of Shasta County. The case was entitled

Wiegel

Crum.

March 12, 1926, the defendant’s answer was filed. It is alleged that on November 5, 1926, by oral consent of counsel in open court, the cause was set for trial for March 28, 1927. It is conceded that no further stipulation for continuance of the cause was made. After numerous

ex parte

proceedings and orders made upon the court’s own motion, to none of which the defendant appears to have consented, the cause was finally set for trial for October 3, 1932. On April 22, 1932, the defendant duly served and filed his motion under section 583 of the Code of Civil Procedure, to dismiss the action. This motion was heard by the court and denied on May 20, 1932. The present petition for a writ of

mandamus

was then presented to this court.

Section 583,

supra,

provides in part: “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 upon 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 same may be extended.”

Crum v. Superior Court

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THOMPSON (R. L.), J.

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