Kaster

The application is for a writ of review to annul an order made by said superior court dismissing an action appealed from the justice court on questions of law and fact by one R. C. Brace and not brought to trial within two years after the appeal was taken. It is claimed by petitioner that section 583 of the Code of Civil Procedure, the apparent authority for said order, is not applicable to such case, and in support of his contention he cites Pistolesi v. Superior Court, 26 Cal. App. 403 , [ 147 Pac. 104 ], and Long v. Superior Court, 31 Cal. App. 34 , [ 159 Pac. 734 ], The latter follows the former and in each it was sought to compel the superior court to dismiss the action for the reason that it had not been brought to trial within five years. In the Pistolesi case it was said: “Nor do we think section 583 of the Code of Civil Procedure is applicable to this case. It reads as follows: ‘ . . . Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced or to which it may be transferred on motion of the defendant, after due notice to plaintiff or by the court on its own motion, unless such action is brought to trial…