Hershman

Having been sued upon a promissory note by the assignee of Kissel Homes, a California corporation, appellant Hershman, a duly licensed general contractor, filed an answer which included three affirmative defenses. He also cross-complained against Kissel Homes, said to be the alter ego of respondent Bernard Homes, Iffc., respondent Bernard Homes and numerous other cross-defendants, asking damages and an accounting which would determine his percentage of the profits realized by cross- *653 defendants on their building activities under his contract of employment. 1 The cross-complaint having been filed on September 20, 1963, it was dismissed on motion of cross-defendants on June 3, 1968, for want of prosecution within five years (Code Civ. Proc., § 583). The sole contention on appeal from the order of dismissal is that the trial court abused its discretion in granting the motion.

When respondents moved to dismiss, more than four years and eight months had elapsed from the filing of the cross-complaint; the trial court, as reflected by its minute order, took note of the passage of time reiterating the settled rule that a court, when an action has not been brought to trial…