People's Home Sav. Bank v. Sherman

SHAW, J.

On April 24, 1906, this cause and a number of others which had been decided by the district court of appeal were transferred to this court for decision. The order was a general one, applying to all the cases, and was made in consequence of the fact that the destruction of the records of this court in San Francisco by the fire of April 18th of that year made it impossible for the court to examine any of the cases within the time limited for making such order.

In the district court an opinion was rendered, in part as follows-

“Appeal from a judgment dismissing the plaintiff's action for want of diligent prosecution. On December 10, 1902, the defendant joined issue in the cause by filing his answer. The motion to dismiss was made December 22, 1903, one year and twelve days after issue joined. It is made to appear from the record that defendant became a stockholder in plaintiff corporation on the twenty-ninth day of May, 1890, by subscribing for three hundred shares of the capital stock of the par value of one hundred dollars, of which subscription price he paid one third, agreeing to pay the remaining two thirds upon call. It further appears that on September 30, 1891, the corporation became insolvent, a fact well known to its directors and to defendant; but- notwithstanding this insolvency, the bank continued to do business until the ninth day of January, 1895, at which date it went into liquidation in accordance with the Bank Commissioners’ Act; that on the thirtieth day of September, 1891, when the bank was so insolvent, defendant transferred his shares of stock to one

[795]

B. N. Pratt, without consideration, and Pratt thereafter held the stock in trust for defendant; that on September 30, 1895, plaintiff through its board of directors made a call upon the stockholders for the unpaid subscription, and that neither defendant nor Pratt paid the twenty thousand dollars unpaid upon the stock so standing in the name of Pratt. It further appears, that on the twenty-ninth day of September, 1897, the complaint in this proceeding was filed against defendant in the city and county of San Francisco. It does not appear from the record that any summons was ever issued or served; but on the seventh day of February, 1899, defendant entered an- appearance to said proceeding by general demurrer, and moved for a change of place of trial; that no proceedings were had upon said demurrer or said motion until the seventeenth day of June, 1902, on which date an order was made transferring the cause to Los Angeles County, the proper county for trial; that thereafter, on October 3, 1902, the demurrer was overmled, and on December 10, 1902, issue was joined. That during the whole time from the commencement of the action up until September, 1903, persistent effort was being made by plaintiff, through its attorneys and officers, to effect a settlement and adjustment of their alleged claim, on which last-named date the terms of settlement were practically agreed upon by the parties, but never finally consummated, and on December 22, 1903, defendant gave notice of his intention to move for an order dismissing the action for failure of plaintiff to prosecute the same with reasonable diligence. This motion was heard on the second day of February, 1904, and granted.