Pallett v. Guenther

JAMES, J.

There are here presented two appeals taken by the plaintiffs, one from a judgment entered in the trial court dismissing the action for want of due diligence in the prosecution thereof, and the second an appeal taken from an order subsequently made denying the motion of the plaintiffs for relief under the provisions of section 473 of the Code of Civil Procedure. By stipulation of the parties both appeals are presented together on one set of briefs.

Plaintiffs began their action, which was to settle their right to the use of certain waters and to enjoin the defendants from interfering therewith, by filing a complaint on May 28, 1919. Defendant Guenther, on March 2, 1920, served and filed his demurrer to the complaint. The demurrer was not brought on for hearing before the court and, after notice duly given, said defendant on the 24th of June, 1921, presented to the court a motion to dismiss the action on the ground that the same had not been prosecuted with due diligence. One of the counsel appearing of record as attorney for plaintiffs was in court and resisted the motion but submitted no affidavits or other evidence to excuse the delay. The motion was on the same day granted. On the 29th of July, 1921, plaintiffs, after notice given, appeared and moved the court to set aside the judgment of dismissal. The motion was based upon the records and files in the action, together with two affidavits made by two of the counsel appearing for the plaintiffs.

Considering first whether the court was authorized to dismiss the action because of delay of one year and about four months in bringing on for hearing the demurrer interposed to the complaint: In the year 1905 section 583 of the Code of Civil Procedure was enacted, which provided in part as follows: “The court may in its discretion dismiss any action for want of prosecution on motion of the defendant and after due notice to the plaintiff, whenever plaintiff has failed for two years after answer filed to bring such action to trial. ...” The supreme court has definitely construed the provisions quoted and has decided that they im

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pose a limitation on the power of the court to dismiss only in cases where an answer has been filed; that the power of the court to otherwise and in other eases dismiss for want of prosecution exists, and that such power is governed by the rule of reasonable discretion. And, further, that a demurrer is not equivalent to an answer within the meaning of the section.