Anderson v. Erwyn

LILLIE, J. This is an appeal from an order of dismissal for want of prosecution within the five-year period (§ 583, Code Civ. Proc.). The proceedings leading up to the order began in a prior civil action involving the same parties filed by defendant herein, Victor A. Erwyn, represented therein by Abraham Gottfried, Esq., against plaintiff, Carl E. Anderson, represented by Robert A. Eaton, Esq.

Erwyn v. Anderson, No. 716100, was a suit on a written contract of employment filed January 28, 1959. After several demands made on defendant’s counsel (Mr. Eaton) for a responsive pleading and none having been filed, Mr. Gottfried took a default on April 3, 1959, and obtained default judgment against Anderson eight months later, on December 3, 1959.

Thereafter, on July 12, 1960, Anderson filed a complaint in equity to set aside the default judgment entered against him on the ground of fraud. Defendant Erwyn filed his answer on July 20, 1960. Plaintiff did nothing to bring the matter to trial; finally as a result of the efforts of defendant’s counsel, Mr. Gottfried, pretrial was noticed for February 15, 1961. However, on February 7, 1961, Mr. Gottfried advised Mr. [505]Baton that he would be engaged in trial on February 15, 1961; accordingly, on the same day (February 7, 1961) Mr. Baton addressed the following letter to Mr. Gottfried: “This will confirm our conversation of even date that the Pre-Trial heretofore set in the above entitled matter will be taken off calendar subject to being re-set at a mutually convenient time, by reason of the fact that you are otherwise engaged in trial.” (Exh. B attached to Declaration and Points and Authorities in Opposition to Defendant’s Motion for Order of Dismissal.)

Thereafter nothing was done by plaintiff Anderson to bring the case to trial. The five-year period having expired on July 12, 1965, defendant Erwyn, almost five months later, on December 1, 1965, moved the court for an order of dismissal for lack of prosecution. The trial judge found “that there is no stipulation extending the time in which this case is to be brought to trial within the meaning of Section 583 C.C.P.,” and ordered a dismissal of the action.

Relying upon Bank of America v. Superior Court, 22 Cal.App.2d 450 [71 P.2d 296], appellant argues that the letter of February 7, 1961 (Exh. E) and certain other correspondence (Exh. A, B, C and D, dated July 21, 25, 26 and 28, 1960, respectively) are sufficient to constitute a written stipulation extending the time provided by section 583' because they “truly reflect[s] the parties’ intention to extend the statutory period”; and that he relied “upon the understanding of the parties that the case would be heard on its merits, and action in another case postponed until a final decision was rendered in the case here on appeal.”