Opinion
2-9-1951
ROSE v. KNAPP et al. * Civ. 17944.
A. J. Weiss, Hollywood, Samuel H. Sherman, Hollywood, of counsel, for appellant. Bodkin, Breslin & Luddy, S. V. O. Prichard, Benjamin Chipkin and Oliver O. Clark, all of Los Angeles, for respondents.
ROSE
v.
KNAPP et al. *
Feb. 9, 1951.
Rehearing Denied Feb. 26, 1951.
Hearing Granted April 9, 1951.
A. J. Weiss, Hollywood, Samuel H. Sherman, Hollywood, of counsel, for appellant.
Bodkin, Breslin & Luddy, S. V. O. Prichard, Benjamin Chipkin and Oliver O. Clark, all of Los Angeles, for respondents.
McCOMB, Justice.
Plaintiff appeals from an order dismissing the action pursuant to the provisions of section 583 of the Code of Civil Procedure, for the reason that it was not brought to trial within five years after it was filed.
Chronology
i. The complaint was filed on July 16, 1943.
ii. June 16, 1948, the cause was taken off calendar and a minute order entered purporting to waive the five year statute under section 583 of the Code of Civil Procedure.
iii. November 16, 1949, an order was made correcting the minute order of June 16, 1948, by striking therefrom 'both counsel by stipulation waive five years statute under Section 583 of the Code of Civil Procedure.'
iv. February 2, 1950, defendants made a motion to dismiss the action pursuant to the provisions of section 583 of the Code of Civil Procedure which was denied.
v. February 6, 1950, an application for a writ of prohibition filed by defendants with the District Court of Appeal was denied.
vi. February 10, 1950, defendants renewed their motion to dismiss the action pursuant to the provisions of section 583, Code of Civil Procedure. The motion was granted and the present appeal ensued.
Questions
First: Did the trial court properly grant defendants' motion to dismiss the action?
Yes. Section 583 of the Code of Civil Procedure reads in part as follows:
'Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced or to which t 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 filed a stipulation in writing that the time may be extended and except where it be shown that the defendant has been absent from the State or concealed therein and his whereabouts unknown to plaintiff and not discoverable to said plaintiff upon due diligence, in which event said period of absence or concealment shall not be a part of said five-year period. * * *'
Provisions of this section are mandatory and must be followed unless (1) there is a stipulation in writing by the parties extending the time within which the cause may be tried, (2) there is a showing that defendant is absent from the state, (3) the action has not been brought to trial because of the conduct or action of defendant, or (4) although defendant has not been guilty of acts of obstruction it would have been impossible for plaintiff to proceed to trial. (Favretto v. Favretto, 86 Cal.App.2d 299, 301 et seq., 194 P.2d 748.)
In the instant case there are no facts shown in the record bringing the action within any of the exceptions noted. No reason is shown why the case could not have been tried. In fact the record shows that there was another action between the same parties involving practically the same issues which was tried during the five-year period.
Since plaintiff has not shown any facts to bring the action within any of the exceptions of the rule stated in section 583, supra, the trial court properly dismissed the action.
Second: Did the denial of plaintiff's application for a writ of prohibition by the District Court of Appeal constitute the law of the case so that the trial court was bound thereby and should not have dismissed the action?
No. An ex parte denial of a petition for a prerogative writ is not res judicata, is not the law of the case, and is not binding in a subsequent trial of the action. Such denial is simply a refusal by an appellate court to exercise jurisdiction and does not constitute a determination of the merits of the questions raised by the application. (Funeral Dir. Ass'n v. Bd. of Funeral Dirs., 22 Cal.2d 104, 107 et seq., 136 P.2d 785.) This rule is applicable in the instant case.
Third: Did the trial court abuse its discretion in amending its order of June 16th by striking therefrom the purported waiver by both parties of the five year statute under section 583, Code of Civil Procedure?
No. The trial court may at any time upon request of either party or upon its own motion correct its records for clerical errors in order to make such records speak the truth. (Carpenter v. Pacific Mutual Life Ins. Co., 14 Cal.2d 704, 707 et seq., 96 P.2d 796.)
In the present case the trial judge merely corrected the minute order to make it conform to the facts on the ground that the insertion therein of the matter stricken was merely a clerical error.
Affirmed.
MOORE, P. J., and WILSON, JJ., concur. --------------- * Subsequent opinion 237 P.2d 981.