174 P. 690 | Cal. Ct. App. | 1918
This is an appeal from an order dismissing the action because not brought to trial within five years after the defendant filed his answer.
Section
The provision of section
As to the suggestion of counsel for the plaintiff that to construe this statute as mandatory will result in extraordinary anomalies, it may be said that other statutes are subject to the same criticism; many of our statutes, whether relating to procedure or other matters, are not ideal, and often are but compromises, and sometimes work injustice. But in the present case it may be said that if the plaintiff, at the time of the last postponement of the trial, had called the court's attention to the consequence which would flow from it, he could readily have secured an earlier date for the trial, or possibly a stipulation from opposing counsel waiving the benefit of the statute. As to the hardships suggested by counsel in supposed cases, it is not necessary to consider them at this time. It is sufficient to decide the case presented.
In view of what has been said and of the rule laid down by the supreme court in the cases above referred to, it follows that the portion of the decision of this court inMazitelli v. Crane,
The order is affirmed.
Zook, J., pro tem., and Beasly, J., pro tem., concurred. *737