Allyne v. Superior Court

[663]

SEAWELL, J.

Petition for writ of mandate to be directed to the respondent Superior Court in and for the City and County of San Francisco and to the Honorable Frank J. Murasky, Judge in Department No.. 2 of said respondent court, commanding a dismissal of a certain action heretofore commenced in said court. The principal question involved is whether the mandatory provisions of section 583 of the Code of Civil Procedure require the dismissal of an action which has not been brought to trial within five years after the granting of a motion for a new trial. We are of the opinion that neither section 583 nor any other section of the code compels a trial judge to dismiss an action under such circumstances.

The facts of the case, as they appear in the petition for the writ, are: Petitioners and one Mary J. Kelly were named as defendants in an action commenced in the court below on December 31, 1910, to quiet title to certain real property described in the complaint against all persons claiming any interest therein. Defendants Lucy II. Allyne, Edith W. Allyne, and Agnes M. McGuire answered, admitting plaintiff’s ownership and right to possession of all lands described in the complaint with the exception of a certain parcel known as Emmet place. As to said parcel, they alleged that they and each of them had a private right of way over it to and from adjoining lands owned by them, and that it was, and for more than forty years prior thereto had been, a public highway or street. Defendant Mary J. Kelly, since deceased, whose representative did not join in the petition herein, filed an answer of similar import. Defendant and petitioner City and County of San Francisco also filed an answer in which it alleged that the property in question constituted an open public street or highway. The case was tried on July 17, 1913, and a decree entered on November 29, 1913, adjudging plaintiff to be the owner and entitled to the possession of all lands described in the complaint with the exception of Emmet Place. As to said Emmet Place it was adjudged that plaintiff was the owner of the westerly thirty-nine feet; that the entire parcel was a public street or alley, and that the public and said defendants had the right to pass over and use the same as and for a public street or alley.

[664]