KEY SYSTEM TRANSIT LINES (a Corporation), Petitioner, v. SUPERIOR COURT OF ALAMEDA COUNTY, Respondent, 36 Cal. 2d 184

SHENK, J. The petitioner seeks the writ of prohibition to prevent the exercise of jurisdiction by the respondent court in the trial of an action to recover damages for personal injuries brought by Grace M. and Collis P. Joseph. The action against the petitioner was commenced on November 15,1945. Summons was served on November 29, 1946, concurrently with a substitution of attorneys. The defendant’s answer was filed on January 7, .1947. On January 8, 1948, the petitioner noticed a motion to dismiss the action for failure to bring it to trial within two years from the time of filing (Code Civ. Proc., § 583).

On January 15th the motion was granted. On January 31st the plaintiffs filed a notice of motion to vacate the order of dismissal. The motion was granted by the same judge who made the former order and subsequently the plaintiffs sought to set the cause for trial. The defendant, petitioner herein, thereupon filed the present petition alleging that the respondent court had no jurisdiction to vacate the prior order of dismissal. No appeal was taken from either order.

It is the theory of the petitioner that the court exceeded its jurisdiction in vacating the order of dismissal; that the order was appealable (Southern Pacific R. R. Co. v. Willett, 216 Cal. 387 [14 P.2d 526]), and was subject to be set aside only on appeal or by a motion pursuant to

section 473 of the Code of Civil Procedure; that neither the motion to vacate nor the order granting the motion was expressly or otherwise based on any ground permitted by

section 473, and that both the motion and the order were merely reagitation and involved a determination of the same issues presented on the hearing of the motion to dismiss. The respondent contends that although

section 473 was not expressly mentioned on the motion to vacate, the facts as shown by the record indicate that, the court’s jurisdiction could properly be deemed to have been exercised under that

section or pursuant to its inherent power, and that this court should conclude that it was so exercised. The order granting the motion to dismiss was based on the court’s findings that more than two years had expired since the commencement of the action; that the delay in bringing the action to trial had been inexcusable; that the defendant’s rights had been greatly prejudiced, and that during the period since the filing of the complaint the defendant had an attorney maintaining offices in the city of Oakland.

The record shows that the following additional matters were considered on the motion to vacate the order: On January 9, 1947, and after the filing of the defendant’s answer, a memorandum to set the case for trial was filed. On December 22, 1947, a stipulation was signed by the attorneys for both parties selecting January 12, 1948, as the trial date, and the ease was set for trial accordingly. The defendant’s motion to dismiss was made four days before the trial date agreed upon and the case was put off calendar because of the pendency of the motion.

Because of the congested state of the trial calendar an earlier date for the trial could not be procured. In the vacating order the court recited the additional matters and “upon a more complete presentation of the facts” concluded that there was no unnecessary delay in bringing the action to trial, nor any fault on the part of the plaintiffs, nor any prejudice to the rights of the defendant, and that to dismiss the action without a hearing on the merits would work an injustice upon the plaintiffs.

Section 583 of the Code of Civil Procedure vests in the court the discretionary power to dismiss an action for want of prosecution on motion of the defendant, after due notice to the plaintiff, whenever the latter has failed to bring the action to trial for two years after the complaint was filed. A consideration of the jurisdictional issue will determine the outcome without the necessity of considering other questions. A stipulation of the parties setting the case for trial, entered into after the expiration of two years from the filing of the complaint, was a matter of record in the respondent court.

It must be assumed that the congested state of the trial calendar was within the court’s judicial knowledge. It is also shown by the record that both matters of fact had been inadvertently overlooked by the court in making the first order. The petitioner contends that such inadvertence and mistake were not available to set aside that order under

section 473 as action taken against a party through his mistake, inadvertence, surprise or excusable neglect nor to support the subsequent order as an exercise of the court’s inherent power to correct action taken through its own inadvertence or mistake of fact. The petitioner urges that any inadvertence or mistake here appearing is a matter solely of judicial error reviewable on appeal from the first order. The arguments of the petitioner invoke application of the policy requiring finality of judgments and orders.

That policy generally controls where a judgment or order is entered after a trial on the merits of the litigation. (Drinkhouse v. Van Ness, 202 Cal. 359, 369 [260 P. 869]: Stevens v. Superior Court, 7 Cal.2d 110 [59 P.2d 988].) But the policy has not been deemed controlling where the judgment or order set aside was in the exercise of a discretionary power not based on the merits of the action. The recognized policy in such cases is that which requires a trial on the merits wherever possible. The latter policy has been said to be the basis for the enactment of the provisions of

section 473. (Bowman v. Bowman, 29 Cal.2d 808, 813 [178 P.2d 751, 170 A.L.R. 246]; Riskin v. Towers, 24 Cal.2d 274, 279 [148 P.2d 611,153 A.L.R. 442].) In giving effect to that policy appellate courts have generally refrained from interfering on jurisdictional grounds with the trial court’s reconsideration of a discretionary order not based on the merits of the litigation. (See Kenney v. Kelleher, 63 Cal. 442; De la Beckwith v. Superior Court, 146 Cal. 496 [80 P. 717]; Glougie v. Superior Court, 169 Cal. 675 [147 P. 927]; Earth v. Ten Eyck, 16 Cal.2d 829 [108 P.2d 675]; McDonald v.

Severy, 6 Cal.2d 629, 631 [59 P.2d 98] ; Watkins v. McCartney, 70 Cal.App. 137 [232 P. 982].) This court has also recognized the power of the trial court independently of statute to set aside a default judgment entered through the court’s inadvertence. (Phillips v.

Trusheim, 25 Cal.2d 913, 916 [156 P.2d 25].) In 1 Freeman on Judgments (5th ed.) p. 432, it is said that where the court is deceived or is laboring under a mistake or misapprehension as to the state of the record or as to the existence of extrinsic facts upon which its action is predicated, it has inherent power to vacate a judgment which would not otherwise have been rendered.

That principle was applied by this court in setting aside one of its own judgments almost three years after it was rendered because the first order was made on the theory that the defendant had not moved for a new trial when in fact he had done so. (In re Rothrock, 14 Cal.2d 34 [92 P.2d 634].) Here the later order was in effect based on the inadvertence and mistake of the court in overlooking matters of record and facts within the court’s judicial knowledge. On its face the record does not disclose invalidity for lack of jurisdiction. The order was within the court’s general jurisdiction.

It was made in the exercise of its inherent power under that jurisdiction. Factual sufficiency to support the exercise of the power is not controverted by the record. The intendments which govern are controlling to support the propriety of the exercise of jurisdiction. (Phelan v. Superior Court, 35 Cal.2d 363 [217 P.2d 951].) The peremptory writ is denied. Carter, J., concurred.