Bennett

Does the five-year statute apply when the failure is due to the court calendar and not to plaintiffs lack of diligence? James Bennett, plaintiff and appellant, appeals from a judgment of dismissal entered after the Yolo County Superior Court granted defendants’ motion to dismiss based upon plaintiffs failure to bring the action to trial within five years from the date upon which it was filed. (Code Civ. Proc., § 583, subd. (b).) Under the facts of this case we conclude that the statute does not apply. Accordingly, we reverse.

I

Prior to October 1973, plaintiff and defendant Herman Bennett operated a cement contracting business under the name of Bennett Cement Contractors, Inc. In October 1973, it was agreed plaintiff would leave the business. Herman was assigned plaintiffs interest in the corporation’s accounts receivables and he, Herman, agreed to assume and pay all outstanding corporate debts.

Thereafter, on or about November 5, 1974, Syar Industries, Inc., filed a complaint in Solano County Superior Court under action number 59781 seeking to recover damages from both Herman and plaintiff. The damages represented the unpaid balance on a debt allegedly owed by the…