Henderson v. Palmer Union Oil Co.

LANGDON, P. J.

This is an appeal by the plaintiffs from an order of the trial court dismissing the action under the provisions of section 583' of the Code of Civil Procedure. The order was made upon the motion of the defendants based upon the fact that the cause had not been brought to trial within five years after the filing of answers to the complaint.

The following facts appear without dispute: The complaint joined several parties as defendants and on September 8, 1917, answers of the said defendants were filed., There had been no stipulation between the parties extending the time for the trial of the action beyond the period of five years after answer filed. In September, 1922, defendants made their motion for the dismissal of the action. Upon the hearing of the said motion the plaintiffs orally moved the court to strike from the files the answers of the defendants “upon the ground that the said original complaint being duly verified, the same required a verified answer, and that none of said answers was verified according to law, and there was no verified answer on file by any defendant in said action.” The trial court granted the motion of the defendants and denied the motion of the plaintiffs.

Upon this appeal, the appellants urge, first, that the verifications attached to the answers are

defective;

that “verified answers to verified complaints are not only a positive and mandatory requirement of the law, but they are jurisdictional; they are the condition precedent upon which the law admits defendants to the right to be heard; that the answers on file herein, lacking verification, are not answers and would not have interrupted default if plaintiffs had chosen to take it; they might have been stricken from

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the files and are not the answers contemplated by section 583 of the Code of Civil Procedure, and did not start running the period of limitation therein applied.”

For the purpose of this appeal only, let ns concede that the verifications attached to the answers did not comply with the statute. The question is then presented: Does the absence of a verification affect the jurisdiction of the court. In the case of