Pistolesi v. Superior Court of San Francisco

[404]

KERRIGAN, J.

This is a petition for a writ of mandate to compel defendants to dismiss an action pending in said superior court.

The sole question involved is, Does section 583 of the Code of Civil Procedure apply to actions pending in the superior court on appeal thereto upon questions of fact from the justices’ court?

The essential facts are these: On the twenty-second day of November, 1904, the action out of which this proceeding grows was commenced. Within the time prescribed by law the answer of the defendant therein was filed, and on the second day of May, 1905, judgment was rendered in favor of the plaintiff therein, W. P. Johnson, against the defendant G. Pistolesi (who is the petitioner here) for a certain sum, together with interest and costs. From that judgment Pistolesi perfected an appeal to the superior court, stating that such appeal was taken upon questions of both law and fact; and the papers in the action were accordingly, as required by law, transmitted to the superior court. The ease has never been tried in the superior court, and on the twenty-seventh day of December, 1913, the defendant Pistolesi served the plaintiff Johnson with a notice that he would move the superior court for an order dismissing the action because of the plaintiff’s failure for more than five years to prosecute it or bring it on for trial after answer filed. This motion was made and denied.

It is conceded that if the superior court was vested with discretion as to whether or not the motion should be granted, this court cannot interfere with that court’s conclusion. But it is claimed by petitioner, as before stated, that, more than five years having elapsed after the commencement of the action, the mandatory provision of subdivision 2 of section 583 applies, and that therefore the superior court should have dismissed the action. Respondent, on the other hand, insists that section 583 is inapplicable to a case brought to the superior court on appeal from a justice’s court, and that the granting or denying of a motion to dismiss such appeal, when it is taken on questions of both law and fact, is a matter resting within the sound discretion of the superior court, citing subdivision 1 of section 890 of the Code of Civil Procedure.

We think that neither this subdivision nor section 583 is applicable to this ease. The former provides when a justice’s