Mercantile Investment Co. v. Superior Court

WASTE, C. J.

Application for a writ of

mandamus

directing the respondent Superior Court to dismiss a pending civil action for an alleged failure of the plaintiff therein to bring the same to trial within the five-year period prescribed in section 583 of the Code of Civil Procedure. Under this section a dismissal is mandatory where there has been a failure to bring the cause to trial within five years after answer filed except where the parties have stipulated in writing that the time may be extended.

The cause which it is here sought to have dismissed was commenced November 5, 1924, the petitioners Townsend and Parkford being named defendants therein. It was continued from time to. time and was partially tried on April 12, 1926, at which time a further continuance was found necessary in order to permit the plaintiff to amend his complaint to include the petitioner Mercantile Investment Company as a defendant. Answers to the amended complaint were respectively filed on April 27 and 29, 1926. The cause was thereafter set down for trial on June 28, 1926, at which time it went off calendar and was indefinitely continued upon motion of the defendants, supported by affidavits, to the effect that it should await the decision of a pending appeal in another action involving certain of the parties. The appeal referred to having been decided, plaintiff had the cause set down for trial on October 19, 1931. A few days prior to this latter date, counsel for one of the defendants requested a continuance on the ground that he was engaged in another trial. Pursuant to this request a written stipulation was prepared, signed by counsel for all of the parties to the action, and filed in the respondent court. The stipulation reads: “It is hereby stipulated by and between the plaintiff above named

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and defendants [petitioners herein] that the trial of the above entitled action heretofore set for the 19th day of October, 1931, . . . may be continued to and tried on the 10th day of November, 1931, or to such day subsequent thereto as may suit the convenience of the court.” In conformity with the foregoing stipulation the trial court continued the trial of the cause to November 10, 1931. Prior to November 10, 1931, counsel for one of the defendants requested a further continuance on the ground that he was engaged in another trial. By reason of such .request “the cause was continued, by oral agreement of the attorneys for the parties to November 24, 1931”. On November 21, 1931, plaintiff filed his notice of motion for leave to file a third amended complaint. Attached thereto and filed therewith was plaintiff’s proposed third amended complaint. Congestion of the calendar precluded the cause from going to trial on November 24th, whereupon the court, of its own motion, continued the trial to February 10, 1932. On February 3, 1932, the respondent court dismissed the action of its own motion. On February 15, 1932, the defendants Parkford and Mercantile Investment Company stipulated in writing that the plaintiff “may file his Third Amended Complaint, and that the answer of said defendants now on file shall be deemed to be the answer to said Third Amended Complaint”. Subsequent to the filing of this stipulation and on motion of the plaintiff made under section 473 of the Code of Civil Procedure the trial court on April 27, 1932, vacated and set aside the dismissal theretofore entered. Defendants thereupon noticed a motion to dismiss, which was denied May 20, 1932. This proceeding in