Mercantile Investment Co. v. Superior Court

Application for a writ of mandamus directing the respondent Superior Court to dismiss a pending civil action for an alleged failure of the plaintiff therein to bring the same to trial within the five-year period prescribed in section 583 of the Code of Civil Procedure. Under this section a dismissal is mandatory where there has been a failure to bring the cause to trial within five years after answer filed except where the parties have stipulated in writing that the time may be extended.

The cause which it is here sought to have dismissed was commenced November 5, 1924, the petitioners Townsend and Parkford being named defendants therein. It was continued from time to. time and was partially tried on April 12, 1926, at which time a further continuance was found necessary in order to permit the plaintiff to amend his complaint to include the petitioner Mercantile Investment Company as a defendant. Answers to the amended complaint were respectively filed on April 27 and 29, 1926. The cause was thereafter set down for trial on June 28, 1926, at which time it went off calendar and was indefinitely continued upon motion of the defendants, supported by affidavits, to the effect that it should await the decision of a pending appeal in another action involving certain of the parties. The appeal referred to having been decided, plaintiff had the cause set down for trial on October 19, 1931. A few days prior to this latter date, counsel for one of the defendants requested a continuance on the ground that he was engaged in another trial. Pursuant to this request a written stipulation was prepared, signed by counsel for all of the parties to the action, and filed in the respondent court. The stipulation reads: “It is hereby stipulated by and between the plaintiff above named

Preliminarily, it should be said that the several con- ' tinuanees, excluding the first one of April, 1926, which was well within the five-year period, and the last one, to suit the convenience of the court, were had not at the request of the plaintiff but at the request of one or more of the defendants who are now seeking to compel a dismissal for delay in the prosecution of the cause. Aside from the legal problem involved, such a course does not appeal to our sense of propriety. However, the authorities tend to indi

This is not, however, determinative of the present proceeding. It is settled that the five-year period prescribed in section 583, supra, “begins to date from the legal filing of the last answer or pleading which becomes a part and parcel of the defendants’ answer”. (Southern Pac. Co. v. Superior Court, 69 Cal. App. 106 , 111 [ 230 Pac. 952 ].) In view of the written stipulation of February 15, 1932, above referred to, consenting to the filing of plaintiff’s third amended complaint, a copy of which complaint was actually filed in the respondent court on November 21, 1931, in connection with the motion for leave to file same, it is immediately apparent that the cause sought to be dismissed will go to trial on such third amended complaint and the answers thereto. The stipulation provided further that the answers then on file should be deemed ansivers to such third amended complaint. This being so, and under the decision last above quoted from, we are of the opinion that the five-year period prescribed in section 583, supra, commenced to run from the date of the filing of such third amended complaint, viz., November 21, 1931, and will not expire until November 21, 1936. It would bé hypertechnical to conclude that such third amended complaint has not, as yet, been formally filed. For all practical purposes, in view of the subsequent written stipulation agreeing that it might be filed, the third amended complaint should be

There is an additional reason, applicable alike to all the petitioners herein, suggesting the denial of a writ of mandate to compel a dismissal. That portion of section 583, supra, relied on by petitioners has application to such cases only as are not brought to trial within five years after answer filed. The chronological history of the cause which it is here sought to have dismissed shows that the action was commenced November 5, 1924, and was partially tried on April 12, 1926, within two years after its commencement. The mandatory provisions of section 583, supra, are therefore without application. In Allyne v. Superior Court, 200 Cal. 661 , 664 [ 254 Pac. 564 ], it is declared: “The plain and obvious purpose of the foregoing section [583, Code Civ. Proc.] is to regulate the matter of compulsory dismissals only under one set of circumstances, to-wit, where an answer has been filed and the action has not been brought to trial within five years thereafter. . . . Section 583 was intended, no doubt, to compel expedition in the trial and disposition of causes. While this is admittedly so, we find no warrant in its language that would justify us in reading into the section words which would clearly compel a dismissal if an action be not retried within five years after a new trial has been granted. The words of the section are to be interpreted according to their common acceptance.”

Though the factual situation presented in the quoted case differs from that here involved, the principle of law there laid down is equally applicable here, viz., section 583, supra, purports to cover such cases only as are not brought to trial within -five years after answer filed. The cause which it is here sought to have dismissed was tried, though only partially, within the five-year period. The section is without application to the circumstances with which we are here confronted. It is not our province to read words into the statute in order to cause it to cover a situation where

The alternative writ is discharged and the petition is denied.

Shenfe, J., Preston, J., Curtis, J., Langdon, J., Thompson, J., and Seawell, J., concurred.