Finley v. Perry

FILES, J. Plaintiff appeals from a judgment dismissing the action for failure to prosecute.

Section 583 of the Code of Civil Procedure provides in part: "The court may in its discretion dismiss any action [364]for want of prosecution on motion of the defendant and after due notice to the plaintiff, whenever plaintiff has failed for two years after action is filed to bring such action to trial. . . .”

“The discretion is that of the trial court and it will be disturbed only in cases of manifest abuse.” (Hayashi v. Lorenz, 42 Cal.2d 848, 851 [271 P.2d 18].)

We set forth hereinafter the circumstances which were before the trial court when it heard and granted defendant’s motion to dismiss.

The action was filed October 11, 1957. The complaint alleged that plaintiff had been a close friend and nurse of Ella Thompson, deceased; that the deceased had promised, in consideration of plaintiff’s services, to leave her home to plaintiff. In 1950 the decedent had made a will leaving her home on Washington Street, in Pasadena, to plaintiff. In 1957 this home was sold when it was about to be condemned for school purposes, and with the proceeds the decedent purchased another home on Navarra Street. However, the decedent did not change her will after having sold the Washington Street home.

The complaint was in three causes of action. The first was for specific performance of an oral agreement to leave property by will, the second was for money due under an oral agreement with the decedent, and the third was in quantum meruit for services rendered. The defendants were the executor, one beneficiary identified by name and five fictitiously named defendants described as heirs at law. The defendants sued under fictitious names were not served with process and were dismissed at the pretrial.

On April 1, 1959, when the ease was about to go to trial, but before trial, the parties and their attorneys agreed upon a settlement. The action was then placed off calendar. This settlement, which was confirmed by a letter signed by plaintiff, provided that through an escrow plaintiff would receive a conveyance of the Navarra Street home, which was appraised at $7,000, and pay to the estate $3,000 cash. Plaintiff was to borrow $4,000, using the house as security, to provide the necessary funds for the $3,000 payment, attorney’s fees and other expenses. The probate court authorized the executor to carry out this compromise.