Kubli v. Hawkett

Foote, C.

— The appeals here are from a judgment dismissing the action as to two of the defendants, E. 0. Eobinson and J. Eobinson, for the want of prosecution thereof, and from an order refusing to set aside and vacate that judgment.

It has been decided by the appellate court that it will not take jurisdiction of an appeal from an order refusing to set aside a judgment or order which is itself appealable. (Eureka etc. R. R. Co. v. McGrath, 74 Cal. 51; Larkin v. Larkin, 76 Cal. 323; Goyhinech v. Goyhinech, 80 Cal. 409.) The judgment of dismissal in this action was appealable; hence the appeal from the order just mentioned must be dismissed.

From the record it appears that the action was instituted against the defendants here and one Hawkett on the 3d of November, 1883. On the 8th of July, 1885, the default of Hawkett was duly made and entered. After admission of service of summons, the two defendants here concerned filed demurrers to the complaint on the 18th of July, 1885. On the 10th of December, 1888, a motion was made by them to dismiss the action, which upon being heard, upon affidavits on both sides, was granted, and a judgment of dismissal of the action made and entered.

It was set up in the affidavits for the appellants that the delay in speeding the cause to the hearing upon the issue made by the demurrers to the complaint arose from an agreement by stipulation between the parties, made at the instance of one of the defendants; which delay at his instance this defendant denied in his affidavit, as also that any such stipulation existed.

Upon this state of facts the trial court dismissed the action. It appears, however, that a minute order had been made in the action, which appeared upon the minutes of the court, in volume 4, at page 587 thereof, as follows: “Upon motion and consent of respective counsel, it is ordered that the above cause be continued and set for a time to be agreed upon by counsel, or upon five days’ notice of either.”

But this order was never called to the attention of the court on the hearing of the motion to dismiss the action, but was made the basis of the motion to set aside the judgment of dismissal.

The court below, as is readily perceived, decided the motion to dismiss, and ordered judgment upon the facts as then presented, and did not have the benefit of this order being called to its attention, which by an inspection of the records of the court might easily have been done by the attorney for the appellants here, especially since the affidavit of R. A. Redman had asserted the existence of a stipulation that such action as a minute order contemplated had been entered into by him with one of the appellants, an attorney of record in the case also.

The point to be decided, then, is, whether the trial court was guilty of an abuse of discretion in dismissing the action, upon the facts as then presented.

The affidavits were conflicting in some respects, and the facts that could have been shown by the presentation of this minute order were not before it.

• The appellants’ attorney could have found the order and presented it; he knew that Redman’s affidavit set up the existence of such a stipulation as would perhaps excuse the delay in speeding the cause to hearing. Should the appellants now be successful in maintaining the abuse of discretion of the trial court, when they or their representative failed to inform the court of the existence of this order?

As it seems to us, the neglect of the appellants was the cause of the court not being fully informed in the premises, and their contention should not prevail. But it is said that it was not the duty of the appellants to have urged the hearing of the demurrer; that this should have been done by the respondents, who filed it; and hence that the court was wrong in assuming that the laches of the appellants justified a dismissal of the action.

The appellants brought the action; it would seem that upon them rested the burden of prosecuting it to a finality, and that as a step in that direction, from the facts then appearing to the court, they should have taken measures to have the demurrers determined, so that the action could progress. (Simmons v. Keller, 50 Cal. 39.)

So that we perceive no abuse of the discretion vested in the court as to this part of the transaction. (Grigsby v. Napa Co., 36 Cal. 589; 95 Am. Dec. 213.)

Again, it is argued, notwithstanding the admission that the decisions of the appellate court are to the contrary, that the trial court possesses no power to dismiss an action for the want of prosecution.

As this has been declared to be within the power of the superior court, we do not concur in appellants' view. (See Pardy v. Montgomery, 77 Cal. 327; Cowell v. Stuart, 69 Cal. 525-527.)

For these reasons, we advise that the appeal from the order refusing to set aside the judgment be dismissed, and the judgment affirmed.

Vanclief, C., and Fitzgerald, C., concurred.

The Court. — For the reasons given in the foregoing opinion, the appeal from the order refusing to set aside the judgment is dismissed, and the judgment affirmed.