220 P. 672 | Cal. Ct. App. | 1923
This is an appeal by the plaintiffs from an order of the trial court dismissing the action under the provisions of section
The following facts appear without dispute: The complaint joined several parties as defendants and on September 8, 1917, answers of the said defendants were filed. There had been no stipulation between the parties extending the time for the trial of the action beyond the period of five years after answer filed. In September, 1922, defendants made their motion for the dismissal of the action. Upon the hearing of the said motion the plaintiffs orally moved the court to strike from the files the answers of the defendants "upon the ground that the said original complaint being duly verified, the same required a verified answer, and that none of said answers was verified according to law, and there was no verified answer on file by any defendant in said action." The trial court granted the motion of the defendants and denied the motion of the plaintiffs.
Upon this appeal, the appellants urge, first, that the verifications attached to the answers are defective; that "verified answers to verified complaints are not only a positive and mandatory requirement of the law, but they are jurisdictional; they are the condition precedent upon which the law admits defendants to the right to be heard; that the answers on file herein, lacking verification, are not answers and would not have interrupted default if plaintiffs had chosen to take it; they might have been stricken from *83
the files and are not the answers contemplated by section
[1] For the purpose of this appeal only, let us concede that the verifications attached to the answers did not comply with the statute. The question is then presented: Does the absence of a verification affect the jurisdiction of the court. In the case of Butterfield v. Graves,
[2] The trial court had no discretion but to dismiss the action at the time the motion of defendants was made because more than five years had elapsed from the time of the filing of the answers, and had it refused to make such an order, would have been restrained by prohibition from proceeding to try the cause or compelled by writ of mandate to make an order of dismissal. (City of Los Angeles v. Superior Court,
The order dismissing the action is affirmed.
Nourse, J., and Sturtevant, J., concurred.
A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 6, 1923.
All the Justices concurred.