SMITH ET AL. v. BEAR VALLEY MILLING & LUMBER CO. ET AL.*
This appeal concerns the correctness of two orders of the Superior Court, one dismissing plaintiffs' action for failure to bring it to trial within five years after the filing of the complaint under section 583 of the Code of Civil Procedure; and, two, a later order denying plaintiffs' motion to vacate the order of dismissal.
On November 8, 1937, an original complaint to set aside a trustee's sale under a trust deed was filed. Several demurrers were subsequently interposed and sustained. On May 9, 1940, a third amended complaint was filed. On May 18, 1940, defendant Security Title Insurance and Guarantee Company (hereinafter referred to as Title Company) filed its answer. On May 28, 1940, defendant Bear Valley Milling & Lumber Company (hereinafter referred to as Bear Valley Company) demurred to the third amended complaint, which demurrer was heard on June 10, 1940, and taken under submission. On April 4, 1941, it was overruled. On April 21, 1941, the Bear Valley Company filed its answer. On April 25, 1941 (by written stipulation), the answer of the Bear Valley Company was deemed the answer of defendant Big Bear Land & Water Company (hereinafter referred to as Big Bear Company) and also of defendant Guy S. Maltby. On October 28, 1942 (the first occasion upon which plaintiff ever sought to bring the case to trial), a written stipulation was entered into between plaintiffs and defendant Bear Valley Company and defendant Big Bear Company only (Maltby had previously died) that the action “may be tried on December 10, 1942, or if said date is not convenient for the calendar of the above court, upon the first available date thereafter.” On November 2, 1942, plaintiff and defendant Title Company made a similar stipulation in writing. The five–year period provided by section 583 of the Code of Civil Procedure, i. e., “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, except where the parties have stipulated in writing that the time may be extended,” elapsed on November 8, 1942. On February 1, 1943, the case was set to be tried on March 10, 1943, and written notice thereof was given to all defendants except the Title Company and Maltby. On February 10, 1943, counsel for Bear Valley Company and Big Bear Company advised plaintiffs' counsel that he could not try the case until after April 15, 1943, and that any date thereafter would be agreeable to him. He requested of them a continuance of the trial. Plaintiffs' counsel agreed, provided a stipulation could be obtained from defendant Title Company. On February 26, 1943, plaintiffs' counsel wrote and requested the stipulation not later than March 3, 1943. On March 2, 1943, plaintiffs' counsel submitted a form of stipulation for continuance which counsel for defendant Bear Valley Company and defendant Big Bear Company returned by mail, enclosing a letter stating that he lacked authority to sign the stipulation so submitted. He later informed plaintiffs' counsel that he would prepare and propose a form of stipulation for his clients which on March 4, 1943, was done. It provided that the case need not be tried on March 10, 1943, and that the stipulation applied to the defendant Big Bear Company only and should not have the effect of waiving any rights of the defendant under section 583 of the Code of Civil Procedure. Plaintiffs' counsel refused to sign such a stipulation. On March 8, 1943, plaintiffs' counsel moved the court for a continuance of the trial from March 10, 1943, to the earliest available date after April 15, 1943. The motion was heard on March 10, 1943.
In an affidavit of counsel for the Bear Valley Company and Big Bear Company there is recited that “affiant is not opposing the continuance sought by plaintiffs.”
Counsel for the Title Company and plaintiffs' counsel, on March 4, 1943, stipulated in writing continuing the trial from March 10, 1943, to the earliest available date after April 15, 1943. On March 10, 1943, the court granted plaintiffs' motion for continuance to “a date uncertain and to be determined and fixed by the court therefore.” On May 3, 1943, it set the action for trial for June 9, 1943. On May 7, 1943, the administrator of the estate of Maltby, through his attorney, moved in writing “first: that the above–entitled action be dismissed, and, second, that said action be dismissed as to the defendant Guy S. Maltby.” The motion was based upon the grounds of the passage of five years from the filing of the action and that “neither Maltby, nor the administrator has ever stipulated in writing or otherwise that the time for bringing the action to trial might be extended. The administrator has never been made and is not now a party to the action.” Plaintiffs' counsel filed counteraffidavits and alleged that not until October 27, 1942, did he learn of Maltby's death; that defendant Bear Valley Company was the corporate alter ego of Maltby; that the written stipulations constituted a waiver of the five–year statute, and a consent to the trial of the action after the five–year period. It was also argued that the administrator had no standing in court. On May 17, 1943, the court granted the motion to dismiss and on its own motion dismissed the action, not only as to Maltby but as to all defendants except the Title Company. On that same day, May 17, 1943, counsel for defendants Bear Valley Company and Big Bear Company, who was also counsel for Maltby during his lifetime, made a written motion for leave to file a further answer for the Big Bear Company alleging that the action was at issue as to those companies and scheduled for trial for June 9, 1943. That motion was set for hearing on May 24, 1943. Counsel for plaintiffs then filed his affidavit and in it agreed with the other counsel “that the case is at issue” and “will impose great difficulties” in preparing for trial on June 9, 1943. The motion was not heard as the action had been dismissed, as previously related.
Plaintiffs then moved to vacate the order of dismissal on the grounds (1) that the parties had stipulated in writing to continue the trial beyond the statutory period provided in section 583 of the Code of Civil Procedure; (2) that they were estopped from seeking a dismissal on that ground; (3) that the administrator had no capacity to maintain such a motion. On June 1, 1943, that motion was heard and denied.
From these orders plaintiffs have appealed and here again urge these points.
The provisions of section 583 of the Code of Civil Procedure have been held to be mandatory where the parties have not stipulated in writing that the time may be extended, and those provisions are subject to the rule of strict construction. Meier v. Superior Court of Orange County, 55 Cal.App.2d 675, 131 P.2d 554; Superior Oil Co. v. Superior Court, 6 Cal.2d 113, 56 P.2d 950; Carmichael v. Superior Court of Nevada County, 55 Cal.App.2d 406, 130 P.2d 725; Christin v. Superior Court, 9 Cal.2d 526, 71 P.2d 205, 112 A.L.R. 1153; Lake v. Superior Court, 39 Cal.App.2d 247, 102 P.2d 1107; Berry v. Maywood Mut. Water Co., 11 Cal.App.2d 479, 53 P.2d 1032; Bank of America, etc., v. Superior Court, 22 Cal.App.2d 450, 71 P.2d 296; Hibernia Savings & Loan Society v. Lauffer, 41 Cal.App.2d 725, 107 P.2d 494; Miller & Lux, Inc., v. Superior Court, 192 Cal. 333, 219 P. 1006.
As to defendant Guy S. Maltby, the record discloses that he appeared and answered the complaint and subsequently died. The action as to him was never brought to trial within the five–year period. No stipulation in writing or otherwise extending the time of trial beyond the five–year period was entered into by him during his lifetime. Plaintiff admittedly had knowledge of his death on October 27, 1942, within the five–year period. No action was taken to substitute the administrator of his estate as a party defendant. It is well settled that the five–year statutory period specified in section 583 of the Code of Civil Procedure is not interrupted by death. Miller & Lux, Inc., v. Superior Court, supra, 192 Cal. at page 338, 219 P. at page 1008; Larkin v. Superior Court, 171 Cal. 719, 154 P. 841, Ann.Cas.1917D, 670; Andersen v. Superior Court, 187 Cal. 95, 200 P. 963. No motion to dismiss the action was necessary. The manner in which the facts are brought to the attention of the court is entirely immaterial. Turnbull v. Superior Court, 126 Cal.App. 141, 14 P.2d 540. Under such circumstances, it is the court's duty to order the dismissal on its own motion when such facts are brought to its attention. Sacramento T. Co. v. California Reclamation Co., 205 Cal. 42, 269 P. 640; Donovan v. Hollar, 25 Cal.App.2d 548, 78 P.2d 240; Gonsalves v. Bank of America, 16 Cal.2d 169, 172, 105 P.2d 118. When a defendant has filed his answer and has not stipulated for an extension of the time of trial, he is entitled to a dismissal if the case is not brought to trial within five years after the filing of the action even though other defendants have answered within the five–year period and have stipulated in writing for the extension of the time of trial. Dowling v. Superior Court, 122 Cal.App. 443, 10 P.2d 197. Plaintiffs' complaint, therefore, that the administrator had no capacity to maintain a motion to dismiss the action as against Guy S. Maltby individually or as to the remaining defendants is without merit where the court is authorized to order such dismissal on its own motion. The record discloses complete and adequate grounds for a dismissal as to Maltby.
The only question here presented is whether or not the court, at the time it entered the order of dismissal, had jurisdiction to enter the judgment of dismissal in favor of the deceased and against the plaintiffs when the fact of the death of the defendant Maltby was brought to the attention of the trial court prior to the entry of the judgment of dismissal. The order of dismissal is a judgment in the case. Colby v. Pierce, 17 Cal.App.2d 612, 62 P.2d 778.
In Boyd v. Lancaster, 32 Cal.App.2d 574, 90 P.2d 317, this court held that a judgment rendered for or against a person after his death and prior to substitution of his personal representative, is reversible if the fact and time of his death appear in the record.
In Wallace v. Center, 67 Cal. 133, 7 P. 441, it was held that a judgment dismissing an action for want of prosecution was not void, although made after the death of the plaintiff, and without the substitution of his personal representatives, where the time for appeal from such judgment had elapsed. Section 385 of the Code of Civil Procedure provides that in case of the death of a party, on motion, the court may allow the action to be continued by or against his representative.
In Phelan v. Tyler, 64 Cal. 86, 28 P. 114, it was held that in such cases a judgment is simply erroneous, but not void, and while the court ought to cease to exercise its jurisdiction over a party when he dies, its failure to do so is an error to be corrected on appeal, if the fact of the death appears in the record. See 1 Cal.Jur. p. 64, secs. 36 and 37; Judson v. Love, 35 Cal. 463; Shartzer v. Love, 40 Cal. 93. But see, Sheldon v. Gunn, 56 Cal. 582, where an order of dismissal as to a deceased defendant was upheld. See, also, Ewald v. Corbett, 32 Cal. 493; Davis v. Hart, 123 Cal. 384, 55 P. 1060; Tuffree v. Stearns Ranchos Co., 124 Cal. 306, 57 P. 69; Maxon v. Avery, 32 Cal.App.2d 300, 89 P.2d 684; In re Estate of Cazaurang, 35 Cal.App.2d 556, 558, 96 P.2d 185; 20 Cal.Jur. 544, sec. 39; Todhunter v. Klemmer, 134 Cal. 60, 63, 66 P. 75; Hogan v. Superior Court, 74 Cal.App. 704, 709–712, 241 P. 584; 1 Cal.Jur. pp. 63–64, sec. 35; 21 C.J.S., Courts, pp. 143, 144, § 93.
In this respect defendants claim that there is a distinction between a judgment of dismissal and a judgment constituting res judicata as to the rights of the parties in that a judgment of dismissal is not a judgment on the merits and not conclusive of any rights, citing 15 Cal.Jur. p. 128, sec. 185; and Wood, Curtis & Co. v. Missouri, etc., R. Co., 152 Cal. 344, 348, 92 P. 868. It is further argued that lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear and determine the case, and absence of authority over the subject matter or the parties, but that in its ordinary usage, such as was applied in Boyd v. Lancaster, supra, and similar cases, the phrase “lack of jurisdiction” is not limited to these fundamental situations, and cites Abelleira v. District Court of Appeal, 17 Cal.2d 280, 109 P.2d 942, 132 A.L.R. 715. It appears from Kubli v. Hawkett, 89 Cal. 638, and the cases above cited, that the trial court has the power to dismiss an action under section 583 of the Code of Civil Procedure for want of prosecution.
In Wallace v. Center, supra, it was held that the court may clear its records of “moribund cases” even though a party is dead. The failure to cease exercising the court's jurisdiction over a party when he dies and when such death appears of record is an error to be corrected on appeal. Phelan v. Tyler, supra. Before a judgment may be reversed on appeal prejudicial error must be shown.
The question therefore presented as to the dismissal of Maltby is this: Has prejudicial error been established? Under the undisputed evidence, had the proper procedure been taken by plaintiffs and an administrator appointed, the administrator would have been, as a matter of law, entitled to a dismissal at the time the trial court dismissed the action. A reversal of the judgment of dismissal as to Maltby on this appeal would result in no other or different judgment should the case as to him be remanded for further and proper proceedings. There is a rule which has often been applied in this state and which is clearly applicable here, that an appellant, who would not be entitled to succeed in any event, cannot be heard to complain of any error committed by the trial court. See 4 Pacific Digest, Appeal and Error, p. 794, + 1029; Hamlin v. Pacific Electric R. Co., 150 Cal. 776, 89 P. 1109; Visher v. Wilbur, 5 Cal.App. 562, 90 P. 1065, 91 P. 412; Carpenter v. Sibley, 15 Cal.App. 589, 119 P. 391; Tom Boy Gold Mines Co. v. Green, 11 Colo.App. 447, 53 P. 845; Art. VI, sec. 4 1/2, Constitution; McPhail v. Buell, 87 Cal. 115, 25 P. 266; 2 Cal.Jur. 981, sec. 580.
As to the defendants Bear Valley Company and Big Bear Company, a closer question is presented. It is plaintiffs' argument that there not only was a written stipulation waiving the time for trial beyond the five–year period, but that the affidavits, documents used on the motion to set the case for trial, when considered together with the facts related, estopped defendants from claiming the benefit of the five–year provision and that defendants by their actions waived it.
On October 28, 1942, within the five–year period, these defendants and plaintiffs stipulated in writing that the “action might be tried on December 10, 1942” (beyond the five–year period) or “if said date is not convenient for the calendar of the above court, upon the first available date thereafter.” The action was not tried on December 10, 1942. The written stipulation had no legal effect other than to extend the five–year limitation to December 10, 1942, or if not convenient for the court's calendar, to the first available date on the calendar thereafter. The stipulation did not take the case out of the operation of section 583 of the Code of Civil Procedure for all times to come. Miller & Lux, Inc., v. Superior Court, supra, 192 Cal. at page 340, 219 P. at page 1008. When the court fixed the trial date for March 10, 1943, which was apparently the first available date after December 10, 1942, the date then became definite and certain, to which those defendants were willing to waive any rights which might accrue to them under the section. Once the indefinite date was made definite, by court selection, the office of the stipulation was fully performed. Its force and effect were fully expended and it had no further function or purpose. The foregoing conclusions find support in Mercantile Inv. Co. v. Superior Court, 218 Cal. 770, 25 P.2d 12; City of Los Angeles v. Superior Court, 185 Cal. 405, 197 P. 79; and Sedarovich v. Paul, 16 Cal.App.2d 452, at page 454, 60 P.2d 871, 872, in which case the court said:
“The authorities are clear that a stipulation to set a case for trial at some indefinite time in the future cannot divest the trial court of the right to exercise its discretion, pursuant to the terms of section 583, Code of Civil Procedure. Such a stipulation can mean no more than that the case would be set down for trial within a reasonable time in the future, and the burden is upon the plaintiff to show diligence in attempting to bring on the case for trial within such reasonable time. (Citing cases.)”
In Kaster v. Superior Court, 34 Cal.App. 88, 91, 166 P. 852, 853, the court said:
“* * * it was the duty of each litigant to promote an early trial, and the court could, upon the default of either, dismiss the case.”
As to the defendants here involved, there was no written stipulation extending the time of trial beyond March 10, 1943. If plaintiffs desired to preserve their rights under the written stipulation and avoid the bar of the statute, they should, at that time, have called the court's attention to the situation and requested that one witness be sworn and the hearing of the case continued to a time convenient to the court and the parties to the action. Miller & Lux, Inc. v. Superior Court, supra, 192 Cal. at page 342, 219 P. at page 1009.
On March 4, 1943, defendants' counsel drew and submitted to plaintiffs' counsel a proposed stipulation which, among other things, provided that it should not have the effect of waiving any rights of the defendants under section 583 of the Code of Civil Procedure. This proffered stipulation was not accepted by plaintiffs. They therefore knew, at least as early as March 4, 1943, that these defendants reserved their right to move for a dismissal, and instead of proceeding to trial on the scheduled date, March 10, 1943, they, on March 8, 1943, sought a continuance to a “date uncertain and to be determined and fixed by the court therefore.” Later, the court fixed June 9, 1943, as the trial date. The fact that defendants did not object to plaintiffs' motion to set the case for trial or for a continuance would not preclude them from later moving for a dismissal. See, Boyd v. Southern Pac. R. Co., 185 Cal. 344, 197 P. 58; Ravn v. Planz, 37 Cal.App. 735, 174 P. 690; and Miller & Lux, Inc. v. Superior Court, supra, 192 Cal. at page 339, 219 P. at page 1008, wherein it is said:
“The statute provides that the time for trial may be extended by written stipulation. It does not provide that it may be extended by a written stipulation ‘or its equivalent.’ * * * The provision that a written stipulation be entered into was intended to preclude all disputes, with their attendant charges and countercharges of overreaching and unethical conduct, by a requirement that clear and uncontrovertible evidence be presented to the court that the statutory time was deliberately intended to be extended by both parties.”
We must therefore conclude that the evidence supports the court's finding that there was no written stipulation which was deliberately intended by both parties to extend the statutory time indefinitely.
It is next argued by plaintiffs that despite the apparently plain import of the language used, specifically providing that an action must be dismissed unless the time for trial be extended by written stipulation of the parties, nevertheless such time may be otherwise extended, that is to say, by words and conduct on the part of the defendants constituting a waiver of their right to dismiss or an estoppel from exercising such right. As already noted, the failure of defendants to object to the court's resetting the case for trial for June 9, 1943, did not constitute a written stipulation or operate as a waiver or an estoppel. Boyd v. Southern Pac. R. Co., supra, 185 Cal. at page 347, 197 P. at page 59; Christin v. Superior Court, supra; Elmhurst Packers, Inc. v. Superior Court, 46 Cal.App.2d 648, 116 P.2d 487. The fact that defendants' counsel moved for permission to file a further answer on May 17, 1943, could not operate as a waiver or estoppel. Miller & Lux, Inc. v. Superior Court, supra, 192 Cal. at page 343, 219 P. at page 1010; Hibernia Savings & Loan Society v. Lauffer, supra, 41 Cal.App.2d at page 732, 107 P.2d at page 497; Bank of America Nat. Trust & Savings Ass'n v. Moore & Harrah, 54 Cal.App.2d 37, 128 P.2d 623.
Referring to some of the older cases permitting an estoppel to prevent a dismissal under section 583 of the Code of Civil Procedure, in 5 Cal.Jur.Supp. p. 232, sec. 31 [9 Cal.Jur. p. 545, n. 5], it is said:
“The intimations of the earlier cases, noted in the text, that there may be equitable grounds of estoppel to the enforcement of the dismissal of an action, have been effectively set at rest by the case of Miller & Lux, Inc. v. Superior Court, 192 Cal. 333, 219 P. 1006, which holds that in all cases a written stipulation is necessary in order to extend the statutory period. In commenting upon the statutory rule the court said: ‘The very harshness of the rule would seem to be intended to put the plaintiff on the qui vive to secure irrefutable evidence of the defendant's consent to an extension of the statutory time’.”
It has been repeatedly held that if it appears that there is a written stipulation the terms of which may be reasonably construed as not constituting a waiver or one constituting a waiver of the right to invoke the provisions of section 583 of the Code of Civil Procedure, the trial court's decision, on a motion to dismiss, as to the meaning, scope, and effect of such stipulation, constitutes a judicial determination which may not be disturbed by a reviewing court. Bank of America, etc., v. Superior Court, 22 Cal.App.2d 450, 71 P.2d 296. In the instant case the trial court held against plaintiffs' contention.
In Hibernia Savings & Loan Society v. Lauffer, supra, the court, after reciting the purpose of the enactment of section 583 of the Code of Civil Procedure, stated that the exercise of the discretion of a trial court in dismissing an action for delay in bringing it to trial, whether in the exercise of its inherent power or under the discretionary power conferred upon it by that section, will not be disturbed on appeal except upon a showing of abuse of discretion.
The question actually before this court, therefore, is whether the trial court abused its discretion when it made its order. It is clear to us that there was no abuse of that discretion. Sedarovich v. Paul, 16 Cal.App.2d 452, 454, 60 P.2d 871, and cases cited. We are unable to hold, as plaintiffs would have us do, that the evidence conclusively shows, as a matter of law, that the defendants had waived, or were estopped from invoking, the five–year provision of section 583 of the Code of Civil Procedure.
These same questions are presented on the attempted appeal from the order denying plaintiffs' motion to set aside the order of dismissal. The final judgment of dismissal being appealable, the order denying the motion to vacate and set it aside is not appealable. Alpers v. Bliss, 145 Cal. 565, 79 P. 171; People v. Montgomery, 51 Cal.App.2d 444, 125 P.2d 108; Goyhinech v. Goyhinech, 80 Cal. 409, 22 P.2d 175; In re Estate of Gregory, 122 Cal. 483, 55 P. 144.
Plaintiffs' attempted appeal from the order denying plaintiffs motion to set aside the order of dismissal is dismissed. Judgment of dismissal affirmed.
BARNARD, P.J., and MARKS, J., concur.