Dowling

This is an original proceeding for a writ of mandate requiring the respondent court to dismiss as against the petitioner herein an action pending before said court entitled Rose Le Mar v. J. A. Dowling et al. The ground upon which the petition herein is based is that said cause was not brought to trial within five years after the filing of petitioner’s answer therein and that the dismissal prayed for is therefore mandatory under the provisions of section 583 of the Code of Civil Procedure.

The action entitled Rose Le Mar v. J. A. Dowling et al. was commenced in the Superior Court in the County of Marin on October 16, 1926. The complaint prayed for damages for personal injuries alleged to have been sustained by reason of a fall into a concrete sump constructed by Dowling in the course of the performance of a contract between Dowling and the town of Sausalito covering improvements to a public street in that town. The town of Sausalito and the American Indemnity Company (the surety upon Dowling’s contract) were joined as defendants in the action. The answer of Dowling was filed December 13, 1926, the answer of the American Indemnity Company was filed April 9, 1927. On July 11, 1927,…