Hayward Lumber & Investment Co. v. Greenwalt

SEAWELL, J.

Plaintiff appeals from a judgment of dismissal entered upon the granting of a motion of the defendant Citizens Land and Loan Company to dismiss the action for want of prosecution. The appeal is presented on a clerk’s transcript as provided by section 953a of the Code of Civil Procedure. Respondents have not filed a brief.

The complaint states a cause of action to foreclose a mechanic’s lien for materials furnished and used in the construction of a building in the city of Bakersfield. The defendant Greenwalt, the contractor, and Beasley, the alleged owner, permitted their defaults to be entered. Defendant Ida Schmidt, alleged to have some interest in the premises, demurred generally to the complaint, while the defendant Citizens Land and Loan Company, also alleged to have some interest, demurred both generally and specially, and also filed an answer. On February 14, 1930, two years and three months after the institution of the action, the respondent Citizens Land and Loan Company noticed a motion to dismiss the cause for want of prosecution based on the provisions of section 1190 of the Code of Civil Procedure, which provides that if proceedings to enforce a mechanic’s lien 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. The demurrer of Ida Schmidt, which in the meantime had been dropped from the calendar, was restored thereto and came on for hearing with the motion to dismiss, both matters being presented by counsel for the respective parties and

[657]

submitted. It was set forth in the affidavit in support of said motion that the complaint was filed on November 23, 1927, that the answer of defendant Citizens Land and Loan Company was filed on February 23, 1928; that the demurrer of Ida Schmidt was filed January 27, 1928, “and that no further action has been taken by plaintiff either to set said cause for trial, or to have the demurrer of Ida Schmidt set down for hearing; . . . that the time for setting said cause for trial has not been extended by the defendant Citizens Land and Loan Company, nor by its attorneys, either by oral stipulation or by written stipulation; that since the date of the filing of said complaint, the title of defendants and of the defendant Citizens Land and Loan Company has been clouded, to the extent that the said defendant could not dispose of said property, nor could it take any steps to assert any of its rights under the security until the question of the validity of said instant action and of the mechanic’s lien sought to be foreclosed by this said action, was determined; that defendant has suffered hardship as the result of the delay in bringing said cause to trial”. The reasons why defendant could not bring said action to trial were also set forth.