Mowry v. Weisenborn

THE COURT.

Appeal by plaintiff from an order dis-' missing the action on the ground that plaintiff has not used due diligence in its prosecution. The action was brought in the superior court of the city and county of San Francisco. The facts appearing by the record are as follows: The complaint was filed April 19, 1890; two demurrers thereto were served May 16, 1890, and filed May 21, 1890. On June 27, 1896, defendants served a motion to dismiss, which was filed June 29, 1896; the motion was noticed for hearing July 3, 1896; accompanying the motion was the affidavit of defend

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ants’ attorney showing that when the demurrers came on to be heard, May 30, 1890, Attorney Wright informed affiant that plaintiff’s attorney of record (Theodore Bradley) had died, and, “on behalf of plaintiff, requested affiant to allow said demurrers to go over until plaintiff employed another attorney to attend to said cause; that affiant consented; and in consequence of which said demurrers went off the motion calendar of the court; that on the nineteenth day of June, 1896, affiant, on behalf of defendants, served a written notice on the plaintiff, requiring her to appoint another attorney in the place of Theodore Bradley, deceased, or to appear in person in said action; that affiant has never been notified that plaintiff has retained an attorney in the place of her deceased attorney of record, and affiant does not know whether she has employed another attorney or not; that since said action was commenced plaintiff has done nothing to affiant’s knowledge to bring the same to trial or to dispose of the same.” The motion came on to be heard July 3, 1896, before Judge Wallace, (plaintiff appearing by counsel,) and was argued, submitted, and denied. It appears by affidavit of defendants’ attorney that on July 10, 1896, defendants served on plaintiff’s attorney proposed bill of exceptions to the order denying motion to dismiss, and on July 18th plaintiff served proposed amendments, and on July 22d defendants served notice of non-adoption of the third proposed amendment and delivered the proposed bill of exceptions to the clerk; that the judge failed to give defendants notice of the settlement of said bill of exceptions, and the bill has never been settled; that thereafter plaintiff took no further steps to bring on said demurrer for hearing until January 9, 1899, on which day plaintiff served notice of motion that said demurrers of defendants would be heard on January 13, 1899. It further appears that on the day for hearing the presiding judge transferred the cause from Department 6 to Department 4, of said court, “for hearing of all further proceedings”; on that day, at 10 o’clock A. M., plaintiff appeared in Department 6, by her counsel, ready to proceed with the argument of said demurrers, and was then informed of said transfer to Department 4; thereafter, January 14th, defendants served, and on January 16, 1899, filed, their affidavit and notice of motion to dismiss; on January 24, 1899, by stipulation of the parties, the cause