Favretto v. Favretto

PEEK, J. This is an appeal by plaintiff from what we conclude to have been a proper order granting defendant’s motion to dismiss the action under the provisions of section 583 of the Code of Civil Procedure on the ground that it had not been brought to trial within five years.

The record discloses that the complaint which was filed on December 15, 1941, was followed by an amended complaint filed on June 10, 1942. By the latter pleading plaintiff, as guardian of the person and estate of his mother, Erminia Favretto, an incompetent person, sought to have it determined that defendant, the former husband of the incompetent and father of the guardian, held title to certain real property in trust for her; to require an accounting for the rents, issues and profits thereof; to require defendant to convey to the mother the title to said property and to require defendant to pay to her certain sums per month for support during her lifetime. Defendant’s answer, which denied generally the allegations of the amended complaint and affirmatively alleged that the action was barred by sections 318, 337, 338,' subdivision 4 and 343 of the Code of Civil Procedure, was filed October 1, 1942, and the cause was then at issue. On January 3, 1944, defendant moved to dismiss the action for failure to bring the same to trial within two years. After hearing, the motion was denied on June 19, 1944. The court in justification of its action stated that by reason of the entry into the armed services of the original plaintiff and because of the substitution of counsel for plaintiff, the motion would be denied. Shortly thereafter, in accordance with the admonition of the trial court the cause was set for trial on September 12, 1944. Because of the illness of defendant the ease did not go to trial on the date set but was continued upon written stipulation of the parties to be reset by stipulation of counsel or upon motion of either party. It appears that during most of this time efforts were made by both counsel to compromise and settle the action. These negotiations culminated in a final letter by defendant’s counsel to plain[301]tiff dated January 4, 1946, wherein it was stated that defendant offered the sum of $11,250 in full settlement and in accordance with their previous understanding that defendant would be released from all liability and support of plaintiff, which offer was accepted by plaintiff’s guardian. The facts and circumstances subsequent to such offer and acceptance, as appears from the various affidavits of counsel, are both contradictory and conflicting. Particularly is this true in regard to the drafting of the necessary documents for filing in the probate court in order to obtain approval of said compromise.