Crum

This is a petition for a writ of mandamus to compel the dismissal of an action under the provisions of section 583 of the Code of Civil Procedure, for failure, on the part of the plaintiff, to bring the cause to trial for more than five years after the issues are settled.

December 5, 1925, a complaint for an action in assumpsit was filed in the Superior Court of Shasta County. The case was entitled Wiegel v. Crum. March 12, 1926, the defendant’s answer was filed. It is alleged that on November 5, 1926, by oral consent of counsel in open court, the cause was set for trial for March 28, 1927. It is conceded that no further stipulation for continuance of the cause was made. After numerous ex parte proceedings and orders made upon the court’s own motion, to none of which the defendant appears to have consented, the cause was finally set for trial for October 3, 1932. On April 22, 1932, the defendant duly served and filed his motion under section 583 of the Code of Civil Procedure, to dismiss the action. This motion was heard by the court and denied on May 20, 1932. The present petition for a writ of mandamus was then presented to this court.

Section 583, supra, provides in part:…