Murphy v. Murphy

55 P.2d 1169, 5 Cal. 2d 640, 1936 Cal. LEXIS 443

Opinion

THE COURT.

This is an appeal by plaintiff from an order of the superior eourt dismissing an action under section 583 of the Code of Civil Procedure because not brought to trial within five years after filing thereof. The action was filed October 31, 1928. The notice of motion to dismiss was given December 27, 1934, and the order of dismissal entered January 3, 1935. Plaintiff contends that the amendment of August, 1933, to section 583, making the five-year period run from the filing of the action instead of from the filing of the answer, is invalid where retroactively applied to her action. This matter has been fully considered by this court in other decisions. The record shows that plaintiff had a period of seventy-one days' from the date of the amendment to bring the action to trial, and the motion to dismiss was not made until over a year after the amendment was passed. In view of these facts we think the trial court did not err in applying the amended statute to her suit. (See Rosefield Packing Co. v. Superior Court, 4 Cal. (2d) 120 [47 Pac. (2d) 716].)

The order is affirmed.

Rehearing denied.