Boyd v. Southern Pacific R. R. Co.

OLNEY, J.

This is an appeal by the plaintiff from a judgment for the defendant based upon an order dismissing the action in accord with the requirements of section 583 of the Code of Civil Procedure, because of failure to bring the action to trial within five years after answer filed. The code section mentioned reads:

“Dismissal of Actions. The court may in its discretion dismiss any action for want of prosecution on motion of the defendant and after due notice to the plaintiff, whenever plaintiff has failed for two years after answer filed to bring such action to trial. Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced or to which it may be transferred on motion of the defendant, after due notice to plaintiff or by the court on its own motion, unless such action is brought to trial within five years after the defendant has filed his answer, except where the parties have stipulated in writing that the time may be extended.”

[346]

[1]

The mandatory character of these provisions of the statute is evident, and our decisions have held that such is in fact their character.

(Larkin

v.

Superior Court,

171 Cal. 719, [Ann. Cas. 1917D, 670, 154 Pac. 841].) In the present case, the action was once set for trial at a time something over a year after issue joined by answer, but the trial date was continued indefinitely by stipulation. Some years later, and a few months before the expiration of the five-year period, the plaintiff moved that the cause be set again for trial, and this was done but for a date after the expiration of the period. Upon the expiration of the period and before the trial date, the defendant moved that the action be dismissed, and the order of dismissal was made.

[2]

The contentions of the plaintiff are two. The first is that the cause was “brought to trial” within the meaning of the statute when it was set for trial, although the date set as the actual trial date was later. Counsel’s argument is that when the plaintiff applied to have the cause set he had done all that he could do, that the fixing of the date at which it would be tried was wholly in the power of the court and beyond the plaintiff’s control, and that the expression “brought to trial” should be taken to mean only that which the plaintiff could control and for which alone, therefore, he should be held responsible. But the meaning of the expression “brought to trial” seems to us too plain to be in doubt. The trial of an action and the setting of it for trial are quite distinct things, and an action is certainly not brought to trial until the trial is commenced. Whether a mere calling of it for trial on the day set for that purpose would be a bringing of it to trial, we need not determine. We need not determine either what would be the situation where a reasonable time before the running of the five years a plaintiff endeavors to have a cause brought to trial but the court refuses to set a date for trial before the time shall have run, although its attention is called to the necessity for so doing. It does not appear in the present case that the situation in this respect was called to the court’s attention when the plaintiff’s motion to set the cause was heard, and it may well have been that, if it had been, an earlier date would have been fixed. The responsibility for calling to the court’s attention the necessity for an early