Sunset Publishing House v. Cottage Gardens Nurseries

NOURSE, J.

This is an appeal from an order dismissing the action on the ground of want of prosecution. The complaint was filed in the superior court of the county of Humboldt on November 22, 1918. The cause of action was a balance due the plaintiff for work and labor performed and materials furnished to the defendant, amounting to $1,224.45. A demurrer was filed to said complaint on December 13, 1918. About this time the defendant became financially involved, and upon proceedings duly had in the superior court of that county a receiver was appointed for the defendant.

[453]

On November 9, 1921, upon application to the superior court, permission was given to the plaintiff to prosecute an action against this defendant and said receiver. Thereafter, and on December 28, 1923, new attorneys were substituted for the plaintiff herein and on December 28, 1923, they filed an amended complaint herein adding said receiver as a party defendant. To this amended complaint the defendants demurred on January 24, 1924, and at the same time filed a motion to dismiss this action on the ground that the plaintiff had failed to prosecute it with due diligence. The affidavit of the attorney for the defendants in support of this motion sets forth facts substantially as just recited. In answer thereto the plaintiffs filed the affidavit of their original counsel who acted as such until December 28, 1923. Prom this affidavit it appeared that from the fourth day of April, 1919, when the receiver was appointed, counsel for the defendants herein acted as his attorney, while the affiant acted as the attorney for the plaintiff, and that numerous meetings of the creditors of said company were called at the request of its attorneys, and that at each of said meetings plaintiff’s counsel appeared and was assured by the receiver and by defendants’ counsel that the receiver would soon render his report and account, that payments would be made to the creditors on account of their various claims, and that the prosecution of legal proceedings, including this action, would be unnecessary. It also appeared from said affidavit that the delay in prosecuting this proceeding was caused by the actions, conduct, and representations of counsel for said receiver and that the defendant had not been prejudiced by the delay, but, on the other hand, it had been benefited thereby. That at each of the meetings referred to the obligation involved in this action had been repeatedly admitted and said receiver and his counsel had repeatedly assured the plaintiff that it would be paid and satisfied. All these facts stand in the record uncontradicted. No answer has been filed to the original or amended complaint and the debt has not been denied at any time. Upon this showing alone the trial court made its order dismissing the action from which the appeal is prosecuted. The question involved on the appeal is whether the trial court abused its discretion in dismissing the action.