Opinion
11-2-1956
Ida LEWIS, Plaintiff and Respondent, v. Wm. H. NEBLETT, as Administrator of the Estate of Eddie Will Sellers, Sr., Deceased (substituted as defendant in place and stead of Harry Aides, the former Administrator of said estate), Defendant and Appellant.* Civ. 21547.
Wm. H. Neblett, Harry W. Dudley, Los Angeles, for appellant. Leonard D. Nasatir, Los Angeles, for respondent.
Ida LEWIS, Plaintiff and Respondent,
v.
Wm. H. NEBLETT, as Administrator of the Estate of Eddie Will Sellers, Sr., Deceased (substituted as defendant in place and stead of Harry Aides, the former Administrator of said estate), Defendant and Appellant.*
Nov. 2, 1956.
Hearing Granted Dec. 24, 1956.
Wm. H. Neblett, Harry W. Dudley, Los Angeles, for appellant.
Leonard D. Nasatir, Los Angeles, for respondent.
WHITE, Presiding Justice.
Defendant, William H. Neblett, Administrator of the Estate of Eddie Will Sellers, Sr., Deceased, has appealed from the judgment for plaintiff in her action to establish a trust in certain real property standing in decedent's name at the time of his death.
The first ground urged by appellant for reversal is that Section 583 of the Code of Civil Procedure required that the court dismiss the action before trial and its failure to do so was prejudicial error. Respondent contends that said section is not applicable to the instant action for two reasons: (1) defendant made no motion to dismiss before or at the time of trial; and (2) the written stipulation of plaintiff's attorney and the attorney for the former administrator, then the defendant in the instant action, was filed before trial.
October 19, 1949, the complaint was filed naming as defendant Bessie Sellers, Administratrix of the Estate of Eddie Will Sellers, Deceased. Mrs. Sellers was such administratrix from July 12, 1949 until June 4, 1954, when she was removed by court order. Harry Aides was appointed August 4, 1954, and served as such administrator until April 29, 1955, when he resigned with the approval of the court.
Section 583 of the Code of Civil Procedure provides that any action 'shall be dismissed * * * 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 * * *.'
October 19, 1954, the five year period from the filing of the complaint expired.
October 21, 1954, Bessie Sellers filed her complaint in intervention alleging that she, the surviving spouse of decedent, and their minor son, as his heirs, are the real parties in interest, denying some of the allegations of the complaint, and praying that plaintiff take nothing.
April 4, 1955, when the case was called for trial, a written stipulation signed by the then attorney for plaintiff and the attorney for Harry Aides, who was then the administrator and the defendant herein, was filed. That stipulation provides that the trial 'be continued until May 23, 1955, or as soon thereafter as may be convenient to the court'. On the same day when the continuance was being considered, the court declined to rule on the written objections of the intervenor, Bessie Sellers, and stated that the trial would be continued to May 3, 1955, which would allow sufficient time for a motion to dismiss under Section 583 to be made in the Law and Motion Department.
April 15, 1955, notice of motion to dismiss for failure to bring the action to trial within five years, supporting affidavit and points and authorities were served and filed by intervenor.
April 28, 1955, the motion was denied.
April 29, 1955, William H. Neblett was appointed to succeed Harry Aides as administrator and substitued as defendant in this action.
May 3, 1955, the cause was called for trial and on motion of plaintiff it was then continued to May 26, and the actual trial was commenced May 27th.
An appeal does not lie from an order denying motion to dismiss. Code Civ.Proc., § 963; Parker v. Owen, 83 Cal.App.2d 474, 189 P.2d 81; Eistrat v. Humiston, 129 Cal.App.2d 463, 464, 277 P.2d 463; Obergfell v. Obergfell, 134 Cal.App.2d 541, 545, 286 P.2d 462. On appeal from the judgment, however, the court may review such an order as one 'which substantially affects the rights of a party.' Code Civ.Proc., § 956.
There is no question but that any action to which said section 583 is applicable must be dismissed if not brought to trial within five years after the complaint is filed. Anderson v. Superior Court, 187 Cal. 95, 97, 200 P. 963; Pacific Greyhound Lines v. Superior Court, 28 Cal.2d 61, 63, 168 P.2d 665.
Certain conditions, none of which have been shown to exist in the instant action, may except an action from the application of section 583, Christin v. Superior Court, 9 Cal.2d 526, 530, 71 P.2d 205, 112 A.L.R. 1153; and defendant may waive his rights to a dismissal under the terms of the section.
One of the reasons for the creation of the Law and Motion Department was to save time in the trial departments and to make it unnecessary to have the parties and witnesses present in the court room during the argument and decision of such motions as the one made by intervenor in the instant action. The trial judge has before him the record of the making and disposition of such motions. It is not required or expected that motions disposed of before trial shall be repeated at the trial. Nor was it required that defendant, himself, move for dismissal upon the same ground, authorities and arguments as urged in intervenor's motion. The manner in which the expiration of said five year period is brought to the attention of the court is immaterial. When the court becomes aware of the facts it must, if they come within the purview of the statute, dismiss the action. Smith v. Bear Valley, etc. Co., 26 Cal.2d 590, 601, 160 P.2d 1, and cases there cited; Hunt v. United Artists, 79 Cal.App.2d 619, 626, 180 P.2d 460. In the instant action, defendant's right to a dismissal was not waived by his proceeding with the defense, and the court's failure to dismiss will be reviewed upon this appeal.
Said five year period within which an action may be tried may be extended by the written stipulation of the parties. Code Civ.Proc., § 583; Rio Vista Mining Co. v. Superior Court, 187 Cal. 1, 2, 200 P. 616.
In the instant action when the trial was to commence on April 4, 1955, five years and almost six months after the filing of the complaint, the intervenor objected. The stipulation relied upon by respondent to extend the five year period was filed on that day--whether before or after intervenor's objections is not shown by the record on appeal. However, if an effective stipulation was filed first, the motion to dismiss was properly denied; and, if an effective stipulation was filed after the motion to dismiss was made, the motion wa waived and it was proper to proceed with the trial. was made, the motion was waived and 187 Cal. 1, 5, 200 P. 616; Koehler v. Peckham, 11 Cal.App.2d 481, 483, 54 P.2d 500.
At that time, appellant was the attorney of record for intervenor and not yet a party to the action. The stipulation was not signed by appellant or by his client. It is contended by appellant that Harry Aides, his predecessor as administrator and as defendant in this action, had no power to waive the rights of the beneficiaries of decedent's estate under section 583, and that consequently the stipulation signed by him was of no force or effect and did not relieve the court of its duty to dismiss the instant action.
It is conceded by respondent that an administrator has no power to waive a statute of limitations with respect to any creditor's claim filed against an estate, Probate Code, section 708. The instant action does not concern a creditor's claim and section 708 of the Probate Code cannot be applied to the facts now engaging our attention.
In Bryson v. Hill, 107 Cal.App. 158, 290 P. 52, defendant executor failed to plead the bar of the statute of limitations in an action to establish a trust in personal property possessed by defendant at the time of his death. Judgment for defendant was affirmed on appeal, and, 107 Cal.App. at page 160, 290 P. at page 53, the court said: 'And, while the bar of the statute was not pleaded by the defendant executor, it could not be waived by him * * *.' See Reay v. Heazelton, 128 Cal. 335, 60 P. 977, and Vrooman v. Li Po Tai, 113 Cal. 302, 306, 45 P. 470. As said in Jacobson v. Mead, 12 Cal.App.2d 75, 80, 55 P.2d 285, 287, "The personal privilege of waiving the statute of limitations expired with the decedent and was not transmitted to the administrator or any other person to be exercised for the benefit of barred claimants to the prejudice of creditors."
Respondent urges that section 583 of the Code of Civil Procedure is not a statute of limitations, and that the rule laid down in the cases hereinbefore discussed is inapplicable to the instant action.
Courts prefer decisions on the merits over decisions on technicalities. Section 583, like other statutes of limitation, operates regardless of the merits or demerits of an action. City of Los Angeles v. Superior Court, 185 Cal. 405, 414, 197 P. 79; Bell v. Solomons, 162 Cal. 105, 121 P. 377; Superior Oil Co. v. Superior Court, 6 Cal.2d 113, 117-119, 56 P.2d 950. Statutes of limitation are 'intended to run against those who are neglectful of their rights, and who fail to use reasonable and proper diligence in the enforcement thereof.' Neff v. New York Life Ins. Co., 30 Cal.2d 165, 169, 180 P.2d 900, 903, 171 A.L.R. 563. In our opinion, Section 583 was also enacted as a matter of public policy to fix the time within which plaintiff should be required to bring an action to trial.
An administrator's power to deal with the property of an estate is limited. His first duty is to preserve the estate's assets for the creditors and heirs of decedent. Until it has been decided contra by a court of competent jurisdiction, the property possessed by decedent is presumed to have been his. An administrator who has a defense is not authorized to default in an action involving either the property of the estate or property claimed to have been held in trust by decedent. If the administrator merely fails to defend such an action, the court wherein it is pending may presume that he is doing his duty and that he is defaulting in good faith in order to save the estate expense of useless litigation. Then the heirs may seek to enforce repayment by the administrator and may object to his accounting for that purpose. In re Estate of McSweeney, 123 Cal.App.2d 787, 793, 268 P.2d 107. Not so, in the instant action. Here section 583 provided the estate with an absolute defense against plaintiff's action and it was the duty of the administrator to use that defense. In re Estate of Sidebotham, 138 Cal.App.2d 412, 416, 291 P.2d 965. The stipulation of the administrator that the action should be tried after the expiration of the statutory five year period was an attempt to waive the rights of decedent's creditors and heirs. Both the plaintiff and the court are charged with knowledge that an administrator has no authority to so favor a plaintiff at the expense of the creditors and heirs. Therefore, under the facts of the instant action, we are persuaded that the stipulation relied upon by respondent was in excess of the authority of the administrator and/or his attorney. The stipulation was not effective and did not except the action from the operation of section 583 of the Code of Civil Procedure. The action should have been dismissed before trial.
Having decided that the action should have been dismissed before trial, discussion of the numerous other specifications of error becomes unnecessary.
The judgment is reversed with directions to the court below to dismiss the action.
DORAN and FOURT, JJ., concur. --------------- * Opinion vacated 311 P.2d 489.