Charles L. Donohoe Co. v. Superior Court

THE COURT.

This matter is again before us on petition for rehearing from an order of this court heretofore made dismissing the proceedings without prejudice and with leave to file another petition if so advised.

The petitioner in this case seeks a writ of mandate requiring the Judge of the Superior Court of the County of Glenn to dismiss a certain action therein pending, wherein Frank Freeman is plaintiff and Charles L. Donohoe Company et al. are defendants, action No. '2400. It appears in the petition for a writ of mandate that application was made to said Superior Court to dismiss said action on the ground that more than five years had elapsed

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since the filing of the defendants’ answer in said action and that no written stipulation extending the time of trial had been made and that said cause was not brought to trial within the time specified in section 583 of the Code of Civil Procedure. Upon the return made to this court it was made to appear by the answer filed in this proceeding that the trial court heard certain evidence upon the application made to it for the dismissal of said proceedings; that the evidence in said proceedings tended to show that one Joseph E. Bien was an attorney for the defendants in the action herein referred to, being the action for which an order of dismissal was sought, and that said attorney had entered into stipulations with the plaintiff continuing said cause for trial, and that the court, after hearing said evidence, denied petitioner’s motion on the following grounds, to wit:

“A. That said Joseph E. Bien was in fact the attorney at law, in said foreclosure action, of said defendant.

“B. That a stipulation in writing was made between said defendant and the plaintiff in said foreclosure action, that the time within which such action should be brought to trial should be extended for a period longer than five years from the filing of the answer of said defendant, and that plaintiff took all proper steps to bring said action to trial within a reasonable period after the making of said stipulation.

“C. That if said Joseph E. Bien was not in fact the attorney at law in said action for said defendant, that said defendant is estopped from denying that Joseph E. Bien was such attorney at law, and is also estopped from denying that the stipulation aforesaid had been made.”