Bank of America National Trust & Savings Ass'n v. Superior Court

KNIGHT, J. Petitioner moved the Superior Court to dismiss an action pending therein against it upon the ground that the action had not been brought to trial within five years after the complaint was filed. (Code Civ. Proc., sec. 583.) The motion was denied, and petitioner now seeks by this proceeding in mandamus to compel the dismissal thereof.

The action was in claim and delivery, instituted by Albert Couderc, on January 22, 1932, to recover corporate stock pledged with petitioner in October, 1929, by Couderc’s father as collateral for loans made to him by petitioner. The answer was filed on April 7,1932, and the cause was set to be tried on December 2, 1932, but at plaintiff’s request and with petitioner’s consent several postponements were granted. On October 22, 1932, the trial date was continued to December 8, 1932. On December 6, 1932, at the request of Couderc’s then [452]counsel, the case was continued to the December 16, 1932, resetting calendar. On December 16, 1932, the said cause was set for trial for February 1, 1933. On December 30, 1932, the trial date was continued from Febuary 1, 1933, to February 15, 1933. But in the meantime and on January 24, 1933, plaintiff requested that the cause be dropped from the calendar. Petitioner’s attorneys consented thereto, and on that date mailed a letter to the attorneys then representing plaintiff reading as follows: “Pursuant to our conversation this morning, it is agreeable to the defendant that you have the case in question stricken from the calendar, to be reset at a future date and time agreeable to yourselves, and that the striking of the case from the calendar pending the resetting of it for trial, shall not, and does not, operate to your prejudice and disadvantage in any respect so far as this defendant is concerned.” Nothing further was done in the matter until February 26, 1937, when petitioner served its notice of motion to dismiss; and on March 17, 1937, the motion was heard and denied. Thereupon, Couderc’s present attorneys proceeded to have the cause set for trial and entered into negotiations with petitioner’s attorneys to take the deposition of the bank’s employees and to obtain certain data from the bank’s records. Such negotiations continued for two months or more, and were then terminated by the institution of this proceeding on June 12, 1937.

Section 583 of the Code of Civil Procedure declares that “ . . . Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced . . . unless such action is brought to trial within five years after the plaintiff has filed his action, except where the parties have stipulated in writing that the time may be extended . . . ” As contended by petitioner, the provisions of the foregoing section are mandatory, and in order to take a ease out of the operation thereof the stipulation provided for in the exception must be in writing and it must clearly and definitely appear therefrom that the statutory time was deliberately intended to be extended by both parties. (Miller & Lux Inc. v. Superior Court, 192 Cal. 333 [219 Pac. 1006].) But with respect to the enforcement of the provisions of said section 583, it seems to be well settled that it is only where there is no written stipulation and the case