Briley

Briley, plaintiff below, appeals from dismissal of his action for want of prosecution within five years of filing the action pursuant to the mandatory dismissal provisions of Code of Civil Procedure section 583, subdivision (b). The statute requires an “action. . .shall be dismissed by the court. .. unless. . . brought to trial within five years after the plaintiff has filed his action... .”

On appeal, Briley contends the dismissal was erroneous because there was a trial on the merits prior to expiration of the five-year period. He says this case should be controlled by Code of Civil Procedure section 583, subdivision (c) which, in effect, provides a three-year extension of the mandatory dismissal provision where a new trial is granted after judgment.

In this case Briley appeared at the time set for trial and defendants did not appear. The cause was assigned and after waiting a reasonable time, Briley put on testimonial and documentary evidence and received judgment. Later, this judgment was set aside. Where a party does not appear for a properly noticed trial, a judgment or dismissal may be taken by the present party, unless, for good cause, the court directs…