McLaughlin v. Clausen
Before: Belcher
Synopsis
Practice—Dismissal—Verbal Stipulation—Appeal. — Where the evidence as to a verbal agreement between the attorneys for the respective parties for a delay in the trial of a case is conflicting, the action of the trial court in dismissing the case for want of prosecution, several years having elapsed without any effort on the part of the plaintiff to bring it to trial, will not be reviewed on appeal.
Id.—Conflict of Evidence.—Verbal stipulations with reference to pro. ceedings in pending actions cannot be regarded except so far as they are admitted by the parties against whom they are sought to be enforced, or have been wholly or in part executed. And if a party against whom a verbal stipulation is invoked, denies that such a stipulation was made, the court will not hear the parties for the purpose of settling tlie dispute.
Belcher, C. This is an action upon a promissory note for four hundred dollars, executed by the defendant to the plaintiff on December 27,1887, and payable four months after date, with interest.
The complaint was filed October 27, 1888. The answer admitted the making of the note, and that plaintiff was the owner and holder thereof, and that no part of the same had been paid. It then sets up facts which it was claimed constituted a defense to the action.
The plaintiff demurred to the answer upon the ground that it did not state facts sufficient to constitute a defense, and the demurrer was sustained. The defendant declined to amend his answer, and thereupon judgment was entered in favor of the plaintiff.
From that judgment the defendant appealed to this court, where it was held that the facts set up in the answer were sufficient if true to constitute a defense to the action. The judgment was accordingly reversed, and the court below was directed to overrule the demurrer. (McLaughlin v. Clausen, 85 Cal. 322.)
The remittitur was filed in the court below on September 19, 1890. Thereafter, as shown by the minutes of the court, the case was on April 6,1891, “set for trial April 28, 1891.” On the last named day the “trial of cause passed by consent.” On July 6, 1891, the case went “over.” On October 5,1891, the case went “over.” On January 5, 1892, the case went “off calendar.”
Nothing more appears to have been done in the case until October 15, 1895, when plaintiff caused a writ of attachment to be issued and levied on the property of defendant.
[489]On October 23,1895, defendant served and filed notice that he would move the court to dismiss the action, upon the ground that “ plaintiff has failed and neglected to prosecute this action, and has willfully kept this action pending for an unreasonable length of time without making any effort whatever to bring it'to trial.”
The motion was heard on November 4, 1895, and granted, and three days later judgment dismissing the action was duly filed and entered of record. From that judgment the plaintiff appeals.
At the hearing of the motion the judgment-roll, the minutes of the court and the remittitur in the former appeal, and also the remittitur in the case of Witmer Brothers Co. v. Weid, 108 Cal. 569, which was filed in the court below on September 28, 1895, were produced and called to the attention of the court, and affidavits on behalf of the respective parties were introduced and read.
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