Long

Pursuant to a writ of review issued out of this court, the superior court of San Diego County through its clerk has made a return of the transcript and record of the proceedings had and taken by respondents in a certain case entitled "T. P. Banta v. S. O. Long," from which it appears that on November 6, 1905, a judgment was rendered in favor of the plaintiff therein by the recorder’s court of Imperial township (then a part of San Diego County), from which the defendant, who is petitioner here, on November 7, 1905, perfected an appeal upon questions of both law and fact to the superior court of San Diego County. No further proceeding was taken by either party to said action until June 7, 1915, at which time defendant therein, pursuant to notice given, moved the court to dismiss the same upon the grounds, first, that the action had not been prosecuted with diligence ,• second, that it had not been brought to trial by plaintiff within five years after defendant had filed his answer therein, as required by section 583 of the Code of Civil Procedure. The court denied the motion and proceeded to a trial of the case, as a result of which judgment went for plaintiff.

The contention of…