Opinion
Hearing Granted by Supreme Court May 21, 1928.
Appeal from Superior Court, Orange County; R. Y. Williams, Judge.
Action by J. Farbstein against Martin Woulfe and others. From a judgment of dismissal, plaintiff appeals. Reversed.
COUNSEL
Turner & Grainger, of Los Angeles, for appellant.
Robert M. Pease, of Los Angeles, for respondent Woulfe.
OPINION
YORK, J.
This is an appeal from a judgment of dismissal with prejudice as to defendant Martin Woulfe, also known as Martin J. Woulfe, and as to his fee-simple interest in the real property declared in the complaint. A motion to dismiss having been denied as to the defendants Ethel R. Pease and Robert M. Pease and as to any leasehold interest that they, or either of them, had in or to such real property. The dismissal was granted on account of a delay of more than two years in bringing the action, which was an action to foreclose a mechanic’s lien, on for trial. A receiver in another action had been appointed to operate the property involved and certain negotiations had been entered into between the receiver and the plaintiff, which resulted in the payment to the plaintiff by the receiver after the complaint herein had been filed, which reduced the claim of plaintiff from the sum of $6,006.46 to $2,956.46, and appellant had been requested by the receiver not to press this action to trial and had been promised payment of his claim. The respondent was not personally liable for the claim of the appellant, his property only being liable, if at all, under the lien.
Many of the facts and circumstances in the instant case are similar to those in Sunset Pub. House v. Cottage Gardens Nurseries, 70 Cal.App. 452, 233 P. 402. The basis of that opinion is apparently on the ground that it appeared from an affidavit that the delay in prosecuting the proceeding was caused by the actions, conduct, and representations of counsel for a receiver in the matter, and that the defendant had not been prejudiced by the delay, but, on the other hand, had been benefited thereby. The order in that case dismissing the action for want of prosecution was reversed.
In the case of Ferris v. Wood, 144 Cal. 426, 429, 77 P. 1037, 1038, the Supreme Court says:
"It seems to us that the delay was reasonably accounted for and excused, and that the order of the court did not tend to subserve, but rather to impede or defeat, the ends of substantial justice."
The delay in the case of Ferris v. Wood was also similar to that in the case at bar.
The power to dismiss an action on the grounds stated in the case at bar is within the discretion of the superior court, subject only to a reversal of a patent abuse of such discretion. First National Bank v. Nason, 115 Cal. 626, 47 P. 595.
Where the delay is caused apparently only by the attempt to settle and compromise the matter by a payment by the receiver in another action appointed by the court after the filing of the suit, and where such receiver during the course of negotiations had paid to the plaintiff more than one-half of the claim before the notice of motion to dismiss was served, and where the delay in obtaining service of the complaint and the summons is only until knowledge is obtained by the plaintiff that the receiver who had been making very substantial payments on the claim of the plaintiff was no longer to operate the property and would not have funds to pay the remaining balance, and where it appears that thereupon summons and complaint were served upon the defendant Martin J. Woulfe, we are forced to the conclusion that the dismissal as to Martin J. Woulfe was an abuse of the discretion vested in the trial court. The order and decree appealed from are therefore reversed.
I concur: HAHN, Justice pro tem.
HOUSER, Acting P. J. (dissenting).
I dissent. From the record herein it appears that the action which forms the foundation for this appeal was commenced in Orange county on April 13, 1922, for the purpose of foreclosing a mechanic’s lien on property owned by defendant Woulfe, who was in no wise personally responsible for the indebtedness which was the basis of the action. At about the same time, in Los Angeles county, another action was commenced by a different plaintiff wherein a receiver was appointed with power to take over and operate the property described in the action brought to foreclose the mechanic’s lien. It does not appear that Woulfe was a party to the receivership action. An attorney by the name of Adams represented the plaintiff as well as the receiver in the receivership action, and it was he, and not Woulfe, or any one either representing or pretending to represent him, who made the request to the attorney representing the plaintiff in the mechanic’s lien action that the latter action be not pressed "to trial, " as stated in the opposing affidavit presented on the motion to dismiss the mechanic’s lien action.
Although, as shown by affidavit, during all the time in question defendant Woulfe was a resident of the city of Los Angeles, had an office in a downtown business building, his name and address appeared in all telephone directories and city directories, and he owned real property assessed to him with his correct residence address appearing on the tax records of the county of Orange-he was not served with a copy of the complaint and the summons in the mechanic’s lien action for a period of two years and seven months after the action was commenced.
With reference to an action for the foreclosure of a mechanic’s lien, among other things, section 1190 of the Code of Civil Procedure provides that in case such proceedings "*** be not prosecuted to trial within two years after the commencement thereof, the court may in its discretion dismiss the same for want of prosecution. ***"
For a period of over two years and one-half after the mechanic’s lien action was commenced, it lay dormant. Although during all that time defendant Woulfe was a resident of the city of Los Angeles, had a business office therein, was a taxpayer in the county where the action was instituted against him, and his residence and his business address readily discoverable, no attempt was made to serve him with a copy of the complaint and the summons. The only reason given for such neglect is that an attorney representing parties in another action, altogether hostile to the interests of Woulfe and in no wise representing him, made the request of the attorney for the plaintiff in the mechanic’s lien action (in which Woulfe was a defendant) "not to press this action to trial or to incur further expense in it," because, forsooth, the attorney in the receivership action apparently hoped or expected that the receiver would pay off the claim covered by the lien. Not a single statement or even suggestion is made that Woulfe was a party to any such arrangement, or that he had any knowledge or suspicion of its existence. It will be noted that the request made by the attorney in the receivership suit to the attorney in the mechanic’s lien action was not that a copy of the complaint and the summons be not served on the parties defendant in the action, but was that the action be not pressed "to trial. " It is clear that a wide and unmistakable distinction exists between the service of process on the defendants in an action and in actually getting the case to trial. Especially is that so in a practical way in these days when the courts are crowded with the transaction of legal business to the known extent that until very recently in the county of Los Angeles, and probably true to a lesser extent in the county of Orange, it was next to impossible to get a case heard in the superior court within fifteen months after the answer to the complaint had been filed. The reasons therefore assigned by the plaintiff in the mechanic’s lien action for his long delay of two years and seven months before even serving the defendant Woulfe with a copy of the complaint and the summons were very slight. True, during the period of more than two and one-half years payments were being made by the receiver to the plaintiff in the mechanic’s lien action in reduction of the lien claim, but it is apparent that such payments might just as well have been made had the defendant Woulfe been served with process, at least some time before the statutory period had expired. Certainly, neither he nor his attorney was responsible for the delay, nor was Woulfe personally responsible for the debt from which the lien arose. He was but the owner of the real property on which a sublessee of a sublessee of the original lessee had created an indebtedness which resulted in the claim of lien. It was solely through pecuniary interests presumably wholly hostile to Woulfe that the agreement was reached that the action be not pressed "to trial. " The payments made by the receiver in the receivership suit to the plaintiff in the mechanic’s lien action were made not with any intention of assisting or in any way benefiting Woulfe, but naturally with a view to financially benefiting the plaintiff in the receiver suit, as well as the plaintiff in the mechanic’s lien action. Even if, as suggested by the appellant herein, the result of such payments was that Woulfe was apparently benefited by having the amount of the mechanic’s lien reduced, it was through no kindly intention on the part of the plaintiff in that action that such was the case. But conceding that the amount of the lien was reduced by virtue of the payments made by the receiver, there is nothing in the record to show but that the remaining sum due on the lien claim is still greater than the value of the property-in which event Woulfe will eventually and through the same process lose his property through no fault of his, notwithstanding the payments made by the receiver to the plaintiff herein. So that it may come about that the plaintiff, in addition to acquiring the three thousand odd dollars paid to him on account of his claim of lien, will also become the owner of Woulfe’s property, while Woulfe will not be benefited at all. Appellant makes the statement that Woulfe was in no wise damaged by the delay. The law presumes injury from such a delay. Gray v. Times-Mirror Co., 11 Cal.App. 155, 104 P. 481. But aside from such presumption, taking into consideration the fact that during a part of the two years and seven months of dormancy of the action the property had on it a producing oil well, from which was derived at least sufficient net profits to enable the receiver to make some payments to plaintiff on account of his lien claim, would it not seem reasonable that on some occasion during that period, had the title to the property not been clouded by reason of the pendency of the mechanic’s lien action, Woulfe would have been able to dispose of his property at a profit, or at least to some pecuniary advantage to him? Considering the fact that since April 13, 1922, Woulfe’s property has been in litigation and that conditions with reference to the use and value of his property may have greatly changed to Woulfe’s financial detriment during the two years and seven months elapsing between the time the action was commenced and the date of the service on Woulfe of a copy of the complaint and the summons, it would seem not unlikely that, instead of Woulfe being in any wise benefited by the delay, in truth he sustained very considerable damage.
As hereinbefore set forth, by the express words of the statute, the question of whether the action should be dismissed rested within the discretion of the trial court; and in connection with the language of the statute it should be noted that the statute does not allow the plaintiff two years within which he may serve the defendant with a copy of the complaint and the summons, but that it requires that the action be prosecuted to trial within such period. In this community, experience teaches that it is a far cry from the time process is served in an action until the case actually goes to trial. As the matter stood at the time when Woulfe was served with a copy of the complaint and the summons, seven months more than the prescribed statutory period within which time the case should be on trial had elapsed. In the absence of a motion to dismiss the action, how much longer Woulfe’s property would have been clouded by reason of plaintiff’s neglect and delinquency would be pure conjecture; but ordinarily, at least within the county of Los Angeles, another year would have elapsed before final disposition by trial could have been made of the action. In the meantime, without any positive showing of benefit accruing to him from the delay, Woulfe is obliged to wait and to continue to wait, notwithstanding the plain words of the law that in the circumstances, in the discretion of the trial court, the action may be dismissed. In volume 9 of California Jurisprudence, at page 529, the rule relating to the question here at issue is stated as follows:
"No fixed or certain rule can be laid down as to the circumstances which will justify a court in exercising its discretion in dismissing an action on the ground of want of prosecution, for the obvious reason that no two cases present precisely the same facts. The exercise of this power must in the very nature of things be left to the discretion of the nisi prius court, subject only to a reversal for a patent abuse of such discretion. In ruling upon a motion to dismiss for want of prosecution, a court will not consider the merits of the action, but it may properly consider any facts appearing in the records of the case and bearing upon the question of diligence and good faith, whether they occurred before the action was begun or afterwards. *** Whether or not a defendant suffered any material inconvenience or hardship by reason of the delay is not a matter for consideration upon the hearing of the motion, as the law will presume injury from unreasonable delay. And the fact that the defendant did not protest against the delay is immaterial."
In the course of the opinion in the case of Gray v. Times-Mirror Co., 11 Cal.App. 155, 104 P. 481, the following language is used:
"There is some discussion in the briefs of the proposition whether the respondent suffered any material inconvenience or hardship by the delay. The discussion is without force upon the only question which is involved here-whether the facts disclose an abuse of discretion by the trial court in the granting of the motion. *** The law will presume injury from unreasonable delay. *** A party against whom an action is instituted is entitled to as speedy a disposition thereof as is consistent with his own and the rights of the plaintiff; and, if he who starts the law in motion does not with reasonable promptness pursue all the steps necessary to bring the litigation to an end, he should suffer the penalty of his default. ***"
The established doctrine in this state is that it is the plaintiff upon whom rests the duty to use diligence at every stage of the proceeding to expedite his case to a final determination.
The rule is universal that it is only where the trial court has abused its discretion that its ruling on a motion to dismiss an action will be disturbed by an appellate court.
As is said in Marks v. Keenan, 148 Cal. 161, 82 P. 772:
"The general rule is that the disposition of a motion to dismiss an action for want of prosecution rests in the discretion of the trial court, and that its action on such motion will not be disturbed here unless such discretion has been grossly abused. ***"
If any meaning whatsoever is to be accorded to the word "discretion," as used in section 1190 of the Code of Civil Procedure, it is that the trial court is given the power of being the final judge on the facts as to whether the action should be dismissed. Otherwise, I am unable to see what place the word "discretion" has in legal terminology.
In my opinion, the judgment should be affirmed.