Coleman v. Superior Court

On the fourteenth day of September, 1933, the petitioner herein, after notice duly given, moved the Superior Court of the County of Calaveras to dismiss a certain action therein pending wherein one Giacomo Oneto is plaintiff and the petitioner herein is defendant, on the ground that said action had not been brought to trial within five years after filing the complaint in said action. On the 19th of September, 1933', the Superior Court denied said motion, and upon application set said cause for trial on the third day of October, 1933. Thereupon, the petitioner instituted this proceeding to obtain a writ of prohibition restraining said superior court and the judge thereof from proceeding with the trial of said action, or denying any action therein, other than to enter an order of dismissal. Thereupon, this court issued an alternative writ of prohibition restraining the respondents from proceeding with the trial of said action until the hearing of said petition, and requiring respondents to show cause why they should not be permanently enjoined and prohibited from proceeding with the trial thereof.

The record shows that the motion to dismiss the action of Oneto against the petitioner herein was made prior to the expiration of five years after the filing of the answer therein, and was based upon section 583 of the Code of Civil Proee

Prior to the amendment just referred to, section 583, supra, so far as material here, reads as follows: “An action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced, or to which it may be transferred on motion of the defendant, after due notice to the plaintiff, or by the court upon its own motion, unless such action is brought to trial within five years after the defendant has filed his answer.” The amendment changed the section to read as follows: “Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced, or to which it may be transferred on motion of the defendant, after due notice to plaintiff, or by the court upon its own motion, unless such action is brought to trial within five years after the plaintiff has filed his action.”

The amendment, it will be noted, designates that the five years shall run from the. time the plaintiff has filed his action, that is, from the time the plaintiff has filed his com-' plaint, instead of from the time when the defendant has filed an answer. That portion of the section which authorizes the court to dismiss- an action at its discretion is not involved herein, as the respondent court and judge thereof exercised its discretion in favor of the plaintiff in denying the motion to dismiss. In this particular the record shows that testimony was taken by the court upon which to determine as to how its discretion should be exercised, and upon this proceeding no contention is made that the court abused its discretion.

Only one question is tendered for determination, to wit: Had the court jurisdiction to set the cause for trial and proceed with the same, notwithstanding the defendant’s motion to dismiss? To state the question in another manner: Did the amendment to section 583 of the Code of Civil Procedure, which became effective August 21, 1933, act as a bar to any action where the complaint had been filed five years prior to that date, irrespective of the date upon which the. answer therein was filed?

The authorities appear to be uniform in holding that the legislature has the right to either lessen or lengthen a statute of limitations, subject only to the exception that an

While the action sought to be dismissed by the petitioner was begun in 1920, the record shows that by stipulations extending time the defendant’s answer was not filed until a date within five years of the making of the motion to dismiss. The reasons for the long delay inquired into by the trial court were proper for the trial court to take into consideration in exercising its discretion, but are wholly immaterial here. Had the trial court exercised its discretion in favor of the' petitioner and dismissed the action, then the ease of Steinbauer v. Bondesen, 125 Cal. App. 419 [ 14 Pac. (2d) 106 ], would have been controlling here.

It may be noted that, irrespective of the sections of the code involved in that action, the rule was reaffirmed that courts have the inherent power to dismiss actions where there has been any unreasonable delay in bringing the same to trial.

So far as the record before us is concerned, it is not disclosed on what date the legislature passed the act amending section 583, supra, changing the time when the five-year period begins to run, nor does the record disclose when the amending act was approved by the Governor. All that appears is that the legislature adjourned on the twenty-second day of May, 1933. Not being an emergency measure, the referendum provisions of section 1 of article IV of the Constitution specifying that no act of the legislature shall become effective until ninety days after the adjournment thereof, and until the expiration of ninety days after the adjournment of the legislature on May 22, 1933, the amendment to section 583, supra, did not become any part of the substantive law of the state.

While we readily concede that all persons are chargeable with knowledge of the law, we do not perceive just how they can be held chargeable with the existence of an act which docs not rise to the dignity of law until a certain date. The referendum provisions of the Constitution which prevent an act of the legislature from rising to the dignity

No saving clause was contained in the act amending section 583, supra, changing the date from the time of filing the answer to that of filing the complaint when the five-year period should begin to run. Hence, the cases which we are about to consider we think determinative of this proceeding. While these cases have to do with the statute of limitations, we think the same principle applies when an attempt is made to cut off the right to prosecute an action which is already pending. If applicable to the case sought to be dismissed, the amendment to the section in question shortened the period of limitation to a time which had already run, absolutely cutting off a property right which the authorities are uniform in holding cannot be done.

In 17 Ruling Case Law, page 676, we find the following: “An existing right of action cannot be taken away by mere legislation, as by shortening the period of limitation to a time which has already run, nor is it competent to cut off the remedy entirely, as this would amount to a denial of justice, and, therefore, the limitation statute is void if the period allowed is unreasonably short. But it is entirely competent to shorten the period if a reasonable time is given for the commencement of an action before the bar takes effect. The general rule, therefore, may be stated as follows: When a new limitation is made to apply to existing rights or causes of action, a reasonable time must be allowed before it takes effect, in which such rights may be asserted, or in which suit may be brought on such causes of action. Similarly, in all cases in which the period of a statute of limitations is shortened as to existing causes of action, a reasonable time must be left in which such actions may be commenced.” Numerous authorities are listed in the notes supporting the foregoing quotation.

In the case of Rossi v. Caire, 186 Cal. 544 [ 199 Pac. 1042 ], the court having before it a similar question, held that the time should be calculated from the effective date of the amendment therein being considered. The language of the court is as follows: “This action was instituted August 28, 1917, just four years after the attempted revivor. Defendants interposed a plea of the statute of limitations, alleging the action to be barred by subdivision 3 of section 341 of the Code of Civil Procedure, a subdivision added by the Legislature July 27, 1917. (Stats. 1917, p. 381.) This section as so amended bars an action ‘to set aside or invalidate any action taken or performed by a majority of the trustees of any corporation heretofore or hereafter dissolved by operation of law, including the revivor of any such corporation, ’ unless brought within .six months. We regard this matter and the finding of the court thereon as unimportant in the determination of this cause. The amendment cannot be accepted as absolutely destroying any right of action existing at the time of its adoption, which would be the effect if applied here in any other way than as requiring an action to be instituted within a reasonable time from the taking effect of the amendment. (Sec. 17, R. C. L., p. 676 et seq.)”

The referendum provisions of the Constitution to which we have referred were then in existence, but the time appears to have been calculated by the court as of the date the amendment became effective, just as we have held is the rule that should be applied in this case.

That a statute cannot become effective to bar an existing right without providing a reasonable time for its exercise is likewise supported by the opinion in the case of Doehla v. Phillips, 151 Cal. 488 [ 91 Pac. 330 ].

In 111 Am. St. Rep., page 457, annotations to the case of Brown v. Pinkerton, 95 Minn. 153 [ 103 N. W. 897 , 900], we find the following, supported by an overwhelming weight of authority: “To deprive a person of all remedy for the enforcement of a right is equivalent to depriving him of the right itself, and this, in the constitutional government, is not permissible. Hence, one having the right to maintain an action cannot, by legislation, under the guise of the statute of limitations, be deprived of that right. The utmost that can be done is to fix a time within which the right may be exercised, and the time so fixed must be reasonable. A statute which cuts off all remedies, or so shortens the time within which it may be pursued, as to practically cut it off, is unconstitutional. The general language of the decisions is that a reasonable time must be allowed.”

That the legislature may designate what is a reasonable time, but that a reasonable time must be given, see Kozisek v. Brigham, 169 Minn. 67 [ 210 N. W. 622 , 49 A. L. R. 1260 ], As reported in A. L. R., a long list of notes may be found beginning on page 1263, supporting the rule that the legislature cannot arbitrarily cut off an existing right, but may shorten the -time of limitation if a reasonable time for the exercise of the right is given in the act purporting to shorten the time. To the same effect is the text in 16 Cal. Jur., page 398, section 9. See, also, annotations to the case of Krause v. Rarity, 210 Cal. 644 [ 293 Pac. 62 , 77 A. L. R., beginning on page 1327]; Security Nat. Bank v. Young, 55 Fed. (2d) 616 [ 84 A. L. R. 100 ]; State v. General Accident, Fire & Life Ins. Corp., 134 Minn. 21 [ 158 N. W. 715 , Ann. Cas. 1918B, 615]; Lamb v. Powder River Livestock Co., 132 Fed. 434

Thompson, J., and Pullen, P. J., concurred.

An application by petitioner to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on January 4, 1934.