Stubblefield v. Long

Opinion — York

YORK, J.

This is an appeal from a judgment of dismissal entered pursuant to motion of defendants for lack of prosecution.

The action was brought to recover damages for personal injuries sustained on September 6, 1927. Complaint was filed November 29, 1927; defendant demurred thereto, demurrer was overruled and answer was filed January 28, 1929.

On February 18, 1929, plaintiffs, pursuant to -rule I of the superior court, served and filed in the action a memorandum to the effect that motion would be made in department 34 of said court on the fourth day of March, 1929, to set said cause for trial on the ground that the case was at issue. Pursuant to rule II of said court, the cause was by the clerk of said court placed on the civil active list, and thereafter on the first day of April, 1929, in the absence of *330 the parties thereto and their respective counsel, the said cause was, pursuant to rule III of said court, under the supervision of the presiding judge thereof, set for trial in department 43 of said court on the thirteenth day of May, 1929, at the hour of 9 :30 A. M.

On the thirteenth day of May, 1929, the canse was called for trial in the department named, defendants appearing by counsel, and no one appearing on behalf of the plaintiffs or either of them, whereupon the said counsel for defendants moved the court that said action he dismissed for lack of prosecution, which said motion was granted and the action ordered dismissed.

Plaintiffs appeal from the judgment of dismissal on the ground that the court erred in granting defendants’ motion without proof being first made that plaintiffs had received five days, notice of the time of trial, as required by section 594 of the Code of Civil Procedure.

Upon the authority of the case of Hurley v. Lake County, 113 Cal. App. 291 [298 Pac. 123], the judgment is reversed.

Conrey, P. J., and Houser, J., concurred.