Gibbon

Appeal from a judgment denying a petition for a writ of mandate directing the dismissal of an action pending in Justice’s Court of the City and County of San Francisco.

It was sought by the action mentioned to recover from appellant as a stockholder a proportionate part of a debt of a corporation. The action was filed in the Justice’s Court and summons issued on July 28, 1921. Appellant appeared therein on April 2, 1923, by filing a written demurrer to the complaint, which was submitted for decision on the issue of law presented on February 19, 1924. When this issue was decided does not appear from the record, but it is stated in appellant’s brief that an order overruling the demurrer was made on April 8, 1926, notice of which was given appellant on the same day. A motion was then made by appellant to dismiss the action under the provisions of section 890a of the Code of Civil Procedure, which motion was denied.

It is contended that, it appearing that the action was not brought to trial on issues of fact within two years after the filing of the demurrer, it was the duty of the court under the provisions of the section to dismiss.

The material part of this section provides as…