Turnbull v. Superior Court

SPENCE, J.

Petitioner seeks a writ of mandate to compel respondents to dismiss a certain action entitled

Harriet A. Turnbull

v.

Albert G. Turnbull,

said action being No. 128,810 in the files of the respondent court. The answer of respondents admits that the time for bringing the action to trial was never entended by stipulation of the parties and alleges that petitioner's motion to dismiss was denied by the respondent court on the ground that petitioner was in contempt at the time the motion was made.

The essential facts are undisputed. The action was filed in 1921 and was at issue on both the complaint and cross-

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complaint as early as April, 1922. In December, 1921, the respondent court had made its order requiring petitioner to pay to the plaintiff in said action the sum of $40 per month as alimony

pendente lite.

No further proceedings were had and the motion to dismiss was made after the cause had been at issue for more than ten years. In the trial court plaintiff filed an affidavit in opposition to the motion to dismiss and petitioner filed a counter-affidavit. Plaintiff’s affidavit admitted that petitioner had paid a total of $3,800, but alleged that there was a balance unpaid of $1240. It further alleged facts tending to> show that at all times petitioner had the ability to fully comply with said order, but had failed to do so. Petitioner’s affidavit showed that a smaller amount remained unpaid than the amount stated by plaintiff and alleged facts tending to show his inability to fully comply with the order. The conflict is immaterial on this proceeding and we may assume that all of the facts alleged by plaintiff were true and that petitioner was in contempt at the time he made his motion to dismiss.

It is petitioner’s contention that even assuming that he was in contempt for failure to fully comply with the order made in 1921, it was the duty of the trial court under section 583 of the Code of Civil Procedure to dismiss the action. In our opinion this contention must be sustained. The pertinent portion of that section reads: “Any action heretofore or hereafter commenced shall be dismissed by the court ... 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 time may be extended. ’ ’ It has been repeatedly held that these provisions are not discretionary but mandatory and that the only exception is the one stated in the section itself.