Holt v. Miller

CURTIS, J.

Appeal from a judgment of dismissal for want of prosecution of the above-entitled action on the ground that said action had not been brought to trial within two years after the commencement thereof. The action was one for the foreclosure of a mechanic’s lien and was commenced on September 14, 1926. On January 7, 1929, the court, upon motion of defendant, Howard G. Thompson, Inc., dismissed said action on the ground above stated. The portion of section 1190 of the Code of Civil Procedure material to this appeal reads as follows:

“No lien provided for in this chapter binds any property for a longer period than ninety days after the same has been filed, unless proceedings be commenced in a proper court

[560]

within that time to enforce the same; . . . and in case such proceedings be not prosecuted to trial within two years after the commencement thereof, the court may in its discretion dismiss the same for want of prosecution.” Two years having intervened between the commencement of said action and the order dismissing the same, the trial court was empowered by said section of the code in its discretion to dismiss said action for want of prosecution. The order or judgment of dismissal was therefore valid unless the following additional facts take the case out of the statute and deprive the trial court of authority to make said order. These facts, briefly stated, are as follows: After the ease was at issue, it was set for trial for December 5, 1927. On said day the plaintiff appeared ready for trial. No appearance was made by either of the defendants. After waiting a reasonable time for the defendants and neither of them appearing, the trial court proceeded to hear the case, and at the conclusion of said hearing entered judgment in favor of the plaintiff. Thereafter the defendants filed a notice of motion and served the same on the plaintiff for an order vacating and setting aside said judgment in favor of the plaintiff on the ground that the same had been entered in the absence of the defendants and their counsel, and that their absence from said trial was due to their mistake, inadvertence and excusable neglect. This motion was granted by the court apparently on the nineteenth day of December, 1927. No further steps appear to have been taken in said action until about a year thereafter when the defendants filed and served their notice of motion to dismiss said action for want of prosecution on the ground that said action had not been brought to trial within two years from the commencement of the same.