ELLINWOOD v. BANK OF AMERICA ET AL.
Lathrop McD. Ellinwood, Veranus Ellinwood, and Charlotte McD. Greer (intervener) are brothers and sister. By the terms of the last will of their mother, Elizabeth Steele Ellinwood, and the decree of distribution of her estate, there was distributed to Lathrop McD. Ellinwood, and Mrs. Greer, as trustees for Veranus Ellinwood, under a spendthrift trust, an undivided one–fifth interest in a tract of land comprising 1,000 acres located in Los Angeles County. This trust was to terminate when Veranus Ellinwood reached the age of 48 years, to–wit: October 23, 1936, and the interest in said property was to vest in him without the necessity for a conveyance from the trustees.
On June 11, 1937, Lathrop McD. Ellinwood commenced the instant action, referred to throughout the record as the “equitable lien action”, or as “Action No. 416839”, to establish and foreclose an equitable lien on the said one–fifth interest of Veranus Ellinwood in the said thousand acre tract of land. Said equitable lien was given by Veranus Ellinwood to Lathrop McD. Ellinwood as security for a number of promissory notes, executed by the former. Mrs. Greer intervened in the action on February 24, 1938, and the cause was originally at issue on September 23, 1938, and was first set for trial on March 17, 1941. Negotiations for compromise were continuously carried on until February 24, 1942, by and through which the “said Veranus Ellinwood sought to have the plaintiff and said Charlotte McD. Greer release their claim of equitable lien against the said real and personal property in order that he might effect a settlement or part payment of the claims against him by the said Alice Salee Ellinwood, Bank of America, the plaintiff, said Charlotte McD. Greer, and others.”
A motion to set the instant action for trial was filed on October 26, 1942, and three days later, October 29, 1942, Veranus Ellinwood served and filed his notice of motion to dismiss the action for failure to prosecute the same under the provisions of section 583 of the Code of Civil Procedure.
This appeal is prosecuted from “that certain order or judgment made and entered in the above entitled action, on or about December 28, 1942, granting the motion of Veranus Ellinwood to dismiss the above entitled action and dismissing the above entitled action.”
While the instant action in equity was pending, there was also pending an action to partition the thousand acre tract of land here involved, in which issues were presented as to the ownership or interest of the plaintiff Lathrop McD. Ellinwood, and Veranus Ellinwood in the one–fifth interest therein, devised to Veranus Ellinwood under the terms of his mother's will. An interlocutory decree in said partition action, which is referred to herein as “Action No. 419847”, was rendered on February 24, 1942, and the final decree therein was entered on June 30, 1942.
While both actions were pending, the following stipulation was filed in the partition action on February 10, 1942: “It is hereby stipulated in the above entitled action on behalf of plaintiff and the defendant Veranus Ellinwood that any and all issues as to ownership or interest of either of the parties hereto as between the said plaintiff and the said Veranus Ellinwood, so far as the same affects that undivided one–fifth interest in said property devised and bequeathed to the said Veranus Ellinwood by the last will and testament of Elizabeth Steele Ellinwood, deceased, and distributed to him, need not and shall not be tried in the above entitled action, but that the determination of the claim of said Veranus Ellinwood to that portion of said one–fifth interest claimed by the plaintiff Lathrop McD. Ellinwood, may and shall be determined after the final decree has been entered in the above entitled action, unless otherwise previously determined in that certain action of Ellinwood v. Bank of America, No. 416839 * * *.”
The interlocutory decree dated February 24, 1942, which was rendered in the partition suit, provided as follows: “Said Lathrop McD. Ellinwood, plaintiff, and Veranus Ellinwood, have, by stipulation filed herein, agreed that the trial of the issues affecting the said one–fifth interest in said property may be deferred for future determination in the said action No. 416839 (equitable lien action) and that any decree or judgment rendered herein partitioning said property or confirming the sale thereof shall be without prejudice to the determination in said action No. 416839 of the respective interests of the plaintiff, Charlotte McD. Greer and Veranus Ellinwood in the one–fifth interest in said property distributed to said Veranus Ellinwood by said decree of distribution.”
The following question is here presented for determination on this appeal: Did the stipulation heretofore recited have the effect of postponing the trial of this action (the action for equitable lien) until a date after the expiration of the five year period prescribed by section 583 of the Code of Civil Procedure?
Appellant urges that the “only reasonable construction of the stipulation of February 10, 1942, inasmuch as there is no conflict in the evidence, is that the issues involved in this action were to be tried after the entry of the final decree in the partition suit, which did not occur until after the expiration of the five year period prescribed by section 583, Code Civil Procedure. It is therefore a written stipulation extending the five year period and constituted sufficient cause to defeat a dismissal.”
An examination of the language of the stipulation discloses an apparent intention to eliminate from the trial of the partition suit “any and all issues as to the ownership or interest of either of the” two brothers, as between themselves, “so far as the same affects that undivided one–fifth interest in said property devised and bequeathed to the said Veranus Ellinwood by the last will and testament of Elizabeth Steele Ellinwood, deceased, and distributed to him”; but that such issue be determined after the entry of the final decree in the partition suit, “unless otherwise previously determined” in the instant cause, i. e., the equitable lien action.
It should not be overlooked that the stipulation was filed in the partition suit and not in the instant action; that it referred only to a continuation of the issues presented by the partition suit and made no attempt to continue the trial of the issues in this case. In other words, there is no stipulation to continue the instant case at all, much less to continue it beyond the five year period prescribed by section 583, supra. Moreover, the stipulation is so worded as to indicate that it was within the contemplation of the parties thereto that an adjudication might be had in this case before the final decree was entered in the partition suit.
For the reasons stated, the judgment appealed from is affirmed.
YORK, Presiding Justice.
DORAN and WHITE, JJ., concur.