Barton

A suit for injunction to prevent the city of Richmond, a municipal corporation, from issuing certain paving bonds, and in which the Barber Asphalt Paving Company was joined as a party defendant, was commenced on February 12, 1912. On March 8, 1912, the Barber Asphalt Paving Company demurred to the complaint. Stipulations to continue the hearing on the demurrer, first to March 25, 1912, then to April 15, 1912, and finally to April 29, 1912, were filed. Upon notice, and on the record of the case and affidavits filed by both parties, a motion to dismiss the action for want of prosecution, as to the Barber Asphalt Paving Company, was made on September 11, 1917, and the order granting the motion was entered.

The appellant contends that since there had been no trial on the issue of law raised by the demurrer, the court was without jurisdiction to dismiss the action. Section 583 of the Code of Civil Procedure provides, among other things, that if an action is not brought to trial within five years after answer filed, the action shall be dismissed upon motion. If this power to dismiss for want of prosecution exists after issue of fact is joined, in a proper case the power must also exist…