Riley

This is an appeal from an order dismissing an action for lack of prosecution.

The action was commenced in January, 1896, and in March, 1897, the answer of the defendant was filed. After the cause had thus been at issue for over seventeen years and not having been in the meantime brought to trial, the same on motion of the defendant was dismissed for failure to prosecute the same with due diligence.

Section 583 of- the Code of Civil Procedure provides that: “Any action heretofore or hereafter commenced shall be dismissed ... on motion of the defendant, after due notice to plaintiff or by the court on its own motion, unless such action is brought to trial within five years after the defendant has filed his answer, except where the parties have stipulated in writing that the time may be extended,’’—and the making of an order of dismissal, after the expiration of the five-year period, is mandatory upon the court (Romero v. Snyder, 167 Cal. 216 , [ 138 Pac. 1002 ]).

The defendant asserts- that a stipulation entered into by the parties sixteen years before the notice of motion to dismiss was served relieved it of the necessity of bringing the action to trial within the five years.…