Aptos Building Company v. Superior Court

APTOS BUILDING COMPANY (a Corporation) et al., Petitioners, v. THE SUPERIOR COURT OF SANTA CRUZ COUNTY et al., Respondents; JAMES G. BRYANT, as Director of Employment, etc., Real Party in Interest.

COUNSEL

Carlyle Miller for Petitioners.

Fred N. Howser, Attorney General, ChaS.W. Johnson, Glenn V. Walls and William L. Shaw, Deputy Attorneys General, for Respondents.

OPINION OF THE COURT

Memorandum

PETERS, P. J.

Petition for a writ of prohibition.

Petitioners seek in this proceeding to prevent the respondent superior court from further proceeding, except to dismiss, an action commenced by the respondent commission against petitioners. The record discloses the following chronology:

November 2, 1943--complaint filed and summons issued, but it was never served.

April 14, 1944--the original summons was returned unserved, an amended complaint was filed, and summons issued on the amended complaint.

April 18 or 20, 1944--summons on the amended complaint was served on petitioners.

April 27, 1944--stipulation extending time to defendants to plead to June 1, 1944, executed. This was not filed with the trial court until August 14, 1947.

May 18, 1944--stipulation extending time to defendants to plead until July 1, 1944, executed. This was not filed with the trial court until August 14, 1947.

June 23, 1944--stipulation extending time to defendants to plead until 10 days after receipt of written notice from plaintiff executed. This was not filed with the trial court until August 14, 1947. [84 Cal. App. 2d 841]

December 23, 1946--summons on first amended complaint returned.

July 1, 1947--notice to plead given defendants.

July 7, 1947--motion to dismiss filed by defendants upon the ground, among others, that more than three years had elapsed from the date of service of summons on the amended complaint, that no answer or appearance had been filed or made within that time, and that no judgment had been entered.

July 11, 1947--motion to dismiss argued.

August 14, 1947--the three stipulations above mentioned were filed with the trial court.

August 18, 1947--motion to dismiss denied--entered August 20, 1947.

October 14, 1947--this proceeding in prohibition instituted.

It is quite apparent that, so far as the legal effect of the stipulations is concerned, the case is governed by the rules of law set forth in Rio Del Mar Country Club v. Superior Court, 1 Civ. 13631, this day filed (ante, p. 214 [190 P.2d 295]).

On the authority and for the reasons there set forth in the opinion it is ordered that the peremptory writ of prohibition issue as prayed.

Ward, J., and Bray, J., concurred.