Welborn

This appeal is a companion appeal to that considered in Contract Engineers, Inc. v. California-Doran Heat Treating Co., 2d Civ. No. 30833, ante, page 546 [ 65 Cal. Rptr. 776 ], in which we file our opinion concurrently herewith. Both arise out of the same action in the trial court, but the two appeals involve different defendants and different issues. Consequently, although we permitted a partial consolidation of briefs and of records, we decide them by separate opinions.

The action was filed on March 21, 1962, alleging damage to property of the plaintiff occurring on June 11, 1959, allegedly due to the fault of the defendants. For reasons not appearing from the record, the original complaint was never served on anyone. 1 On October 11, 1962, plaintiff filed its first amended complaint. This pleading was served on the defendants herein involved 2 on the following dates: On defendants Welborn and Structural Systems, Inc., hereinafter referred to collectively *555 as “the Welborns”) on March 20, 1964; 3 4on defendant Paul Munroe Company, Inc. (hereinafter referred to as “Paul Munroe”), on September 20, 1963; on defendant Densmore Engineering Co., Inc. (hereinafter referred to as…

I dissent.

Code of Civil Procedure, section 583 states that ‘ ‘ The Court may in its discretion” dismiss an action for want of prosecution. “The discretion is that of the trial court and it will be disturbed only in cases of manifest abuse. (Hillsdale Builders Supply Co. v. Eichler (1952) 109 Cal.App.2d 117, 118 [ 240 P.2d 343 ] and cases there cited.) ” (Hayashi v. Lorenz (1954) 42 Cal.2d 848, 851 [ 271 P.2d 18 ].) “It is incumbent upon appellant to show that there has been such an abuse of discretion.” (Rouse v. Palmer (1961) 197 Cal.App.2d 666, 669 [ 17 Cal.Rptr. 509 ], and cases there cited.) Also see McKenzie v. Albaeck (1963) 219 Cal.App.2d 97 [ 32 Cal.Rptr. 762 ]; Finley v. Perry (1962) 207 Cal.App.2d 363 [ 24 Cal. Rptr. 308 ].

Furthermore it is the duty of the plaintiff, not the defendant, to use diligence to expedite his action at every stage of the proceedings. (Rouse v. Palmer, supra, 197 Cal.App.2d 666, 671 ; Abner Corp. v. Lushing (1963) 212 Cal.App.2d 597, 605-606 [ 28 Cal.Rptr. 207 ], and cases there cited.) See Boys Town USA, Inc. v. World Church (1963) 221 Cal.App.2d 468, 472 [ 34 Cal.Rptr. 498 ].

My review of the entire record convinces me that the trial judge…