Neustadt v. Superior Court

NOURSE, P. J. Petitioner seeks a writ of mandate ordering the dismissal of an action in conversion commenced on August 11, 1944. He relies on section 583, Code of Civil Procedure. Respondent defends on the ground that other litigation relating to some phases of the conversion action excuses his delay.

No service of process having been made the defendant Neustadt, on July 19, 1946 (almost two years after complaint filed) moved to dismiss on that ground. This motion was denied on April 14, 1947 (almost a year after motion made). An amended complaint was filed on December 22, 1949, and another on June 12, 1951. Demurrers were overruled and motions to strike were denied. The last order, made on February 11, 1952, is the basis of this application.

As excuse for these delays the respondent (we refer herein to the real party in interest, the defendant Skernswell, as respondent) relies on these facts. An action to establish [826]a trust and to partition the trust property (which apparently consists of both real and personal property) and to appoint a receiver thereof was brought by Neustadt against Skernswell. The time when this action was filed does not appear though it appears from the decision on appeal from an adverse judgment by Skernswell, defendant therein, that judgment was entered therein on July 18, 1941. It was during the appeal from this judgment that the alleged acts of conversion (of the same personalty as in the partition suit) took place, and it was then that this action was filed; that is, between the time of judgment and remittitur. It is said that the action was then filed in order to prevent the running of the statute of limitations, although the foundation of the conversion action rested in the outcome of the partition suit. It is not entirely clear from the affidavits that, strictly speaking, the right of Skernswell in an action for conversion depends wholly on the judgment in the partition suit, but that much is at least implied. The appellate court in reversing the original action directed that plaintiff Neustadt be allowed to amend his complaint (Neusted v. Skernswell, 69 Cal.App.2d 361, 371 [159 P.2d 49]) and as a result the outcome of the partition action was further delayed. Because of the delay it is claimed that any attempt to bring this action to trial would have been futile, since at any time, until the partition suit was finally determined, Neustadt could have entered a plea in abatement, thereby nullifying the conversion action. In August, 1949, a motion in the partition suit was made by Skernswell to have that action dismissed. This was based on that part of section 583 that requires an action to be dismissed when, after three years following filing of remittitur in the trial court, a cause remanded for a new trial is not again brought to trial. This motion was granted, but an appeal was then taken by Neustadt from the dismissal (thereby continuing the entire process) and was affirmed in August, 1950 (hearing denied October 26, 1950). (Neustadt v. Skernswell, 99 Cal.App.2d 293 [221 P.2d 694].) It is also stated in the affidavits that there were extensions of time obtained by Neustadt, plaintiff, in the partition suit which added to the delay. A prima facie case is thus made out by the petition (almost eight years have passed since the filing of the complaint in this, the conversion, suit); an excuse is alleged by respondent, relying on the proposition that section 583 is not completely mandatory and a delay may be excused under certain circumstances not stated in