San Jose Land & Water Co. v. Allen

CHIPMAN, C.

Motion to dismiss the action and judgment of dismissal thereon, from which plaintiffs appeal. The complaint was filed August 39, 1890, the object of the action being to have the judgment" referred to in the complaint set aside and to have the court grant the water company, plaintiff herein, a new trial. On April 3, 1891, defendants appeared by general

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demurrer. The hearing of the demurrer was continued from time to time and was finally argued and submitted, and on January 3, 1894, the court made an order sustaining the demurrer and the order was entered in the minutes of the court. An entry of said order was also made on the register of actions in said cause on the same day as follows: "Jan. 3, demurrer sustained.” A rule of court allowed ten days to amend pleadings demurred to after ruling thereon unless otherwise ordered by the court. On June 19, 1897, as appears from an affidavit of plaintiffs’ attorney, leave was granted by the court to file an amendment to the complaint, which was filed June 21, 1897, and on June 29, 1897, defendants gave notice of a motion to dismiss said action and for time in which to plead to the amended complaint, after the motion should be ruled upon, which latter part of said motion was granted July 1, 1897. The motion was heard on the affidavit of J. S. Chapman, an attorney for defendants, and on the affidavits of two of plaintiffs’ attorneys, and on the papers and records referred to in the affidavit of Mr. Chapman. The motion was argued and submitted on November 29, 1897, and taken under advisement, and having fully considered the matter, “the court did on the twenty-sixth day of February, 1898, duly make and enter and file its judgment dismissing said action upon the said motion of the defendants therein,” neither of plaintiffs nor their attorneys being present at the time. The grounds of the motion were: Want of prosecution; that no proceeding had been taken by plaintiffs for more than three years; that the real attorney of the parties defendants is dead; that the firm of Chapman & Hendrick, the nominal attorneys of record, was dissolved more than two years prior to making the motion, and that the interest of both plaintiffs and defendants in the original subject of the action has been transferred to other parties. It appears from the affidavit of attorney Chapman that the facts support the grounds of the motion above stated. Eichard Dunnigan, one of plaintiffs’ attorneys, averred in an affidavit that this action is one of several actions similar in character that have been pending for several years, and that Mr. Chapman has been the attorney in said actions ever since their commencement; that no notice of the ruling on plaintiffs’ demurrer was ever served on affiant or any