Perrin

The appeal is by the plaintiff from a judgment of dismissal because of his failure to bring the action to trial within five years after the answer was filed, pursuant to the provisions of section 583 of the Code of Civil Procedure. Said section, so far as applicable here, reads:

The complaint in this action was filed on October 20, 1908, and the answer and cross-complaint on January 5, 1909. A demurrer to the answer and cross-complaint was filed on February 1, 1909, more than six years before the motion to dismiss the action was made. While the record discloses the fact that said demurrer was overruled, it does not show at what date such action was taken, but it is stated in respondents’ brief that it occurred more than five years before the making of the motion to dismiss.

Said motion to dismiss the action was heard upon affidavits. C. E. McLaughlin, attorney for defendants, whose affidavit was dated May 14, 1915, deposed that at no time since the answer was filed had any stipulation been entered into, in writing or otherwise, extending the time in which said action might be brought to trial; that, in September, 1913, affiant and A. E. Bolton, attorney for plaintiff, had a…