Pacific Finance Corp. v. Superior Court

THE COURT.

After further consideration, we are satisfied that our former opinion, written by Mr. Justice Tyler, upon the question involved in this appeal makes a correct disposition of that question. We, therefore, adopt so much of said opinion as deals with and is decisive of said question. It is as follows:

“Mandamus

to compel the dismissal of a cross-complaint.

“The record presents the following facts: Petitioner commenced an action in the Superior Court on January 21, 1927, against one Beck, defendant. An answer was filed March 3, 1927, and at the same time defendant filed a cross-complaint. On April 4, 1927, an answer to the cross-complaint was filed. The case was set for trial on March 31,

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1932, which was more than five years after issue was joined upon the original complaint, but less than five years after issue joined upon the cross-complaint. On the day set for the trial, upon motion regularly made, the original plaintiff, petitioner herein, moved the respondent court - to dismiss ‘the action’ under the provisions of section 583 of the Code of Civil Procedure. The court thereupon on its own motion dismissed the original complaint and answer which had not been brought to trial within five years, but it refused to dismiss the cross-complaint and answer upon which issue the five-year period had not yet run. The court thereupon proceeded to trial upon the cross-complaint, and petitioner then procured the alternative writ herein.

“It is conceded that no question as to the exercise of judicial discretion by respondent court is here involved. The motion to dismiss was addressed solely to the mandatory provisions of section 583 of the Code of Civil Procedure, which reads as follows: ‘Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced or to which it may be transferred on motion of the defendant, after due notice to plaintiff or by the court on its own motion, unless such action is brought to trial within five years after the defendant has filed his answer, except where the parties have stipulated in writing that the time may be extended. ’ The controversy here presented relates to the proper interpretation to be placed on the word ‘action’ as contained in the provision above quoted. Respondents, in support of the action of the trial court, contend that the issue joined upon a cross-complaint is a separate and distinct action from that joined on the complaint itself; that the two are severable, and the failure of the one has no effect upon the other. Petitioner argues that the word ‘action’ means the entire proceeding or suit, and that when the parties have failed to bring ‘such action’ to trial within five years, then the entire proceeding, cross-complaint and all, must be dismissed. We are of the opinion that petitioner’s contention cannot be sustained. Preliminarily it may be stated that a diligent search of the authorities fails to reveal a single case where the precise situation was presented or passed upon by any court in the various jurisdictions. Authority on principle, however, is not wanting.