Kinard v. Jordan

SHAW, J.

This is an appeal from a final order or judgment dismissing the action.

The order dismissing the action was made on September 14, 1914, in pursuance of a motion by the defendants, under section 583 of the Code of Civil Procedure, to dismiss the action, because the plaintiff had failed for more than two years after answer filed to bring the action to trial. A brief history of the case is necessary to explain the grounds of the appeal.

The action was begun on March 24, 1906. Prior to 1909 a judgment of dismissal was entered, because of the failure of the plaintiff to file an amended complaint in accordance with the orders of the court. The plaintiff appealed and the judgment was reversed on March 11, 1909, the decision holding that the original complaint stated a cause of action for the specific performance of a contract by Huntington, one of the defendants, to transfer to the plaintiff’s assignor certain shares of corporate stock, the other defendants being made parties solely because they were trustees for Huntington or assignees with notice.

(Kinard

v.

Jordan,

10 Cal. App. 219, [101 Pac. 696].) Thereafter, the defendants, except Huntington, filed an amended answer to the complaint. Huntington failed to answer. On October 24, 1911, the trial of the ease was set for December 12, 1911. On December 12th it was continued for trial until December 15, 1911. Notwithstanding these orders, a judgment was rendered on November 8, 1911, purporting to be a judgment in favor of the plaintiff against all of the defendants, including Huntington, his default having been previously entered. From this judgment an appeal was taken by Huntington on December 14, 1911, and a separate appeal was taken by the other defendants on December 16, 1911. No transcript was filed by the defendants on the last-mentioned appeal and that appeal is still pending. On the separate appeal of Huntington the judgment, as against him, was reversed. This decision was rendered on March 9, 1914.

(Kinard

v.

Jordan,

167 Cal. 333, [139 Pac. 797].) We proceed to consider the judgment of dismissal made on September 14, 1914.

[15]