Southern Pacific Railroad v. Willett

TYLER, J.,

pro

tem.

Motion to dismiss appeal. The facts are without dispute. The complaint in the action, which is one to condemn real property for railroad purposes, was filed on March 16, 1899. The answer of defendant and appellant was filed June 27, 1899. Appellant filed with his answer a cross-complaint and, some six years later, on February 24, 1905, filed an amended cross-complaint. The answer of plaintiff and respondent to the amended cross-complaint was filed June 8, 1905. No proceedings were taken and no stipulations, documents or other pleadings were filed in the action from that time until January 15,

[389]

1931, more than, thirty-one years after the answer was filed and more than twenty-five years after the filing of the answer of respondent to appellants’ amended cross-complaint. On March 12, 1931, respondent Southern Pacific Railroad Company served and filed its notice of motion to dismiss the action for want of prosecution, the cause not having been brought to trial within five years after answer filed. On April 17, 1931, there was made and entered in the minutes of the trial court the following order: “The motion of the plaintiff, to dismiss the above entitled action having been heretofore argued by respective counsel and submitted to the court for a ruling and by the court taken under advisement, it is now ordered that the motion be and it is hereby granted and the action is dismissed.” A note of this order was entered in the clerk’s register of actions on the same day. On April 18, 1931, the following judgment was signed by the trial court and entered in the judgment-book: “The motion of the plaintiff to dismiss the above entitled action came on regularly for hearing before the above entitled Court on the 10th day of April, 1931, . . . ; and said motion having been submitted to the Court; and the Court having entered herein its minute order dismissing said action; and good cause appearing therefor. It is ordered, adjudged and decreed that the above entitled action be, and it is hereby dismissed. Done in open court this 18th day of April, 1931. (signed) ” Appellant thereafter moved to vacate the judgment, which motion was denied. Appellant filed a notice of appeal from the judgment of dismissal and also from an order refusing to vacate it. The notice of appeal was filed on June 17, 1931, within sixty days after the entry of the formal judgment, but more than sixty days after the entry in the minutes of the trial court of the minute order dismissing the action.