147 P. 104 | Cal. Ct. App. | 1915
This is a petition for a writ of mandate to compel defendants to dismiss an action pending in said superior court.
The sole question involved is, Does section
The essential facts are these: On the twenty-second day of November, 1904, the action out of which this proceeding grows was commenced. Within the time prescribed by law the answer of the defendant therein was filed, and on the second day of May, 1905, judgment was rendered in favor of the plaintiff therein, W. P. Johnson, against the defendant G. Pistolesi (who is the petitioner here) for a certain sum, together with interest and costs. From that judgment Pistolesi perfected an appeal to the superior court, stating that such appeal was taken upon questions of both law and fact; and the papers in the action were accordingly, as required by law, transmitted to the superior court. The case has never been tried in the superior court, and on the twenty-seventh day of December, 1913, the defendant Pistolesi served the plaintiff Johnson with a notice that he would move the superior court for an order dismissing the action because of the plaintiff's failure for more than five years to prosecute it or bring it on for trial after answer filed. This motion was made and denied.
It is conceded that if the superior court was vested with discretion as to whether or not the motion should be granted, this court cannot interfere with that court's conclusion. But it is claimed by petitioner, as before stated, that, more than five years having elapsed after the commencement of the action, the mandatory provision of subdivision 2 of section
We think that neither this subdivision nor section
The case of Hubbard v. Superior Court,
Nor do we think section
". . . Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have beencommenced or to which it may be transferred on motion of the defendant, after due notice to plaintiff, or by the court on its own motion, unless such action is brought to trial within five years after the defendant has filed his answer. . . ."
This action was not commenced in the superior court, nor can it be regarded as having been "transferred" to that court "on motion of the defendant," the latter language aptly describing only an action transferred to a court of identical jurisdiction in another county.
Although it appears to us plain that neither of the sections referred to applies to this case, the superior court could yet, as it did, resort to its inherent power to pass on the motion and grant or deny it. "It is settled by numerous decisions in this state that the superior court, without the aid of statutory authority, has the power to dismiss an action because of the failure of the plaintiff to prosecute it with reasonable diligence." (Romero v. Snyder,
The court in the present case denied the motion; and it is not claimed, if this is a case for the exercise of discretion, that there has been any abuse thereof. It follows from what has been said that the writ should be denied, and it is so ordered.
Lennon P. J., and Richards, J., concurred.