Sherberne & Associates v. Vector Manufacturing Co.

BISHOP, J. pro tem.* This is an appeal by plaintiff from the order dismissing its action, because of the lapse of five years without a trial. We are affirming the order.

The action was commenced July 12, 1961. Defendants’ notice of motion to dismiss was filed just five years later, on July 12, 1966. A demurrer had been interposed by the defendants on September 5, 1961. It was sustained, with leave to amend, as to two of the four causes of action of the complaint, and a first amended complaint was filed October 25, 1961. To this, defendants Vector (as we shall refer to defendant Vector Manufacturing Company, Inc.) and Piske filed an answer, containing, as a second affirmative defense, a statement that the written agreement of September 15, 1957, upon which plaintiff relied in each of its four causes of action, contained a provision that 1 ‘ the obligations of the agent hereunder are not subject to assignment or delegation, except with the prior consent and agreement of the principal. ’ ’ Defendants added: [70]“The purported assignment to plaintiff of said agreement dated September 15, 1957, was without the prior consent and agreement of defendant Vector. ...”

On July 19, 1963, defendants gave notice of their intention to move July 26, 1963, “for an order for a separate pretrial conference and jury trial of the special defense of lacking of standing to sue as pleaded in the defendants’ answer to the plaintiffs’ first amended complaint.” . . . The notice further advised that the motion “will be based upon the provisions of the California Code of Civil Procedure, section 597. . . -”1

The original record, to which we have turned to obtain a more complete account of events, contains a written order filed, August 21, 1963,2 reading: “It Is Hereby Ordered, that the Second Affirmative Defense pleaded in defendants’ answer to plaintiffs’ First Amended Complaint be heard and determined at a separate pretrial conference and separate jury trial; said pretrial conference and jury trial to be held prior to the pretrial or trial of the other issues in the suit. Said separate pretrial conference is hereby set for September 3,1963.”

Interspersed with other pretrial matters, this phase was continued from time to time, but came to a pretrial hearing on October 22, 1963, with a joint statement reciting: “Defendants motion for separate pre-trial and trial on the second affirmative defense only was granted by the court and is presently the only matter before the court at this pre-trial. ’ ’ Also we find: “Discovery. We certify that all depositions and discovery proceedings have been completed, except as follows for the following reasons: no exceptions. ’ ’ Then, a Pretrial Coneerence Order was filed November 13, 1963, beginning: “A pretrial conference was held on the 22 day of October 1963,” to which was attached, among other things, the joint statement above referred to. Among the statements appearing in the order are these: “All discovery has been completed and none will be permitted hereafter. The case is ready to be set