Sacramento Transportation Co. v. California Reclamation Co.

RICHARDS, J.

This appeal is from an order of the superior court of the city and county of San Francisco granting the motion of the plaintiff and cross-defendant to set aside an order of said court entering the default of said plaintiff and cross-defendant for failure to answer the cross-complaint, and from the further order of said court dismissing the action on the ground of failure on the part of the plaintiff to bring the same to trial within five years from the time the answer and cross-complaint were filed. The complaint herein was filed in the superior court of the county of Sacramento on January 14, 1910, and on February 15, 1910, the plaintiff filed an amended complaint, wherein it was alleged that the defendant was indebted to it for work, labor, and material of the reasonable value of

[43]

$1,989.43. Thereafter, and on March 17, 1910, the defendant filed a general demurrer to the complaint and a motion for a change of place of trial to the city and county of San Francisco, which latter motion was granted. Thereafter, and on August 31, 1915, the defendant’s demurrer was overruled, and on October 11, 1915, the latter filed its answer and also filed what it denominated as both a counterclaim and a cross-complaint, but which in reality was only a counterclaim. (Code Civ. Proc., sec. 437;

Thomas Fruit Co.

v.

Start,

107 Cal. 206 [40 Pac. 336];

Pickwick Stages

v.

Board of Trustees,

189 Cal. 417 [208 Pac. 961].) Thereafter for approximately ten years no action was taken by either party. On September 10, 1925, however, the plaintiff filed a general demurrer to the defendant’s alleged cross-complaint, whereupon the defendant moved to strike said demurrer from the files and have entered the default of the plaintiff for failure to answer the same. The court granted the defendant’s said motion, whereupon, and on May 24, 1926, the plaintiff served and filed a motion to set aside the aforesaid order of default and to dismss the action for want of prosecution, the latter motion being made upon the ground that the trial court had no jurisdiction to enter the default of the plaintiff for its failure to answer the defendant’s pleading, for the reason that under section 583 of the Code of Civil Procedure the cause not having been brought to trial within five years after the filing of said answer and counterclaim, the court had no jurisdiction to do other than dismiss said action. In the recent case of