Kubli v. Hawkett

Citations

• 89 Cal. 638
• 27 P. 57
• 1891 Cal. LEXIS 871

Syllabus

<p>Appeal •— Dismissal — Order Refusing to Set Aside Appealable Judg. ment. — The appellate court will not take jurisdiction of an appeal from an order refusing to set aside a judgment or order which is itself appealable, and an appeal from an order refusing to set aside and vacate a judgment of dismissal for want of prosecution will be dismissed.</p> <p>Dismissal of Action — Want of Prosecution — Discretion — Conflicting Affidavits — Stipulation fob Delay. — It is not an abuse of discretion for the trial court to dismiss an action for want of prosecution, where the only facts appearing were that the action had been commenced more than five years before the motion to dismiss was made, and a demurrer to the complaint had been on file for over three years without being brought to a hearing, and the affidavits filed by both par- , ties were conflicting as to whether the defendants stipulated for the delay.</p> <p>Id. — Order Continuing Cause by Consent — Negligence of PlainoSff’s Attorney. — The order of dismissal will not be reversed because of a previous order of the court, made by consent of counsel, continuing the case to be set for a time agreed upon by the parties, or upon five days’ notice to either, where it appears that the order was upon the minutes of the court at the time the motion to dismiss was made, and the attention of the trial court was not called to it, because of the neglect of the plaintiff’s attorney.</p> <p>Id.—Duty of Plaintiff — Hearing of Demurrer.—The burden of prosecuting an action to a finality is upon the plaintiff, and it is his duty to urge the hearing of a demurrer, and not the duty of the defendant.</p> <p>Id. —Jurisdiction of Superior Court.—It is within the power of the superior court to dismiss an action for want of prosecution.</p>