C. F. DEMPSEY, Appellant, v. J. H. UNDERHILL et al., Defendants, and THE DESERT MINING COMPANY (a Corporation), Intervener and Respondent, 156 Cal. 718

ANGELLOTTI, J. This is an appeal by plaintiff from a judgment dismissing an action for the reason that the same was not brought to trial within five years after issue joined by answer between the intervener and plaintiff. The action was one commenced September 24, 1900, to quiet-plaintiff’s title to an undivided interest in certain mining claims as against certain persons named as defendants. The-defaults of all these persons were entered in the year 1901,. the last of such defaults having been entered on October 15, 1901, but no judgment has ever been given as against any of said defendants.

By leave of the court, the Desert Mining Company filed its complaint in intervention on October 26, 1900, claiming all of the property as against both plaintiff and defendants. Plaintiff’s demurrer to this complaint in intervention was overruled, and he filed his answer thereto on November 24, 1900.

On September 25, 1906, plaintiff gave notice of a motion to be made for an order dismissing the action in intervention on the ground that the issues tendered by the intervener had not been brought to trial within five years after the plaintiff had filed his answer, and that such neglect had not been due to any stipulation of the parties in writing or otherwise (Code Civ. Proc., sec. 583). This motion was heard on November 26, 1906, and the facts stated as, grounds therefor shown to exist.

On December 6, 1906, the lower court made its order denying plaintiff’s motion to dismiss the^action in intervention, and adjudging that "the said action and the whole thereof be and the same is hereby dismissed, for the reason that the same was not brought on for trial within five years. ” This order, which constituted a final' judgment within the meaning of the provisions of the code touching appeals, and which finally and entirely disposed of" the whole case (see Marks v. Keenan, 140 Cal. 33, [73 Pac. 751]), was entered June 6, 1907, and plaintiff appealed therefrom within six months thereafter.

It may be seriously questioned whether the lower court was-warranted by the facts stated in dismissing plaintiff’s action as. to the defaulting defendants. But plaintiff makes no complaint in his briefs on this score. The sole points are: 1. That the intervener never perfected its invention as provided by the-law and therefore has no standing in the litigation; 2. That, the complaint in intervention did not state a cause of action,, and, 3. That the court erred in denying plaintiff’s motion to-dismiss the action in intervention.

Solely for the purposes, of this appeal we may concede that all of these points are-well made, but we are nevertheless utterly unable to see why a reversal of the judgment of dismissal should be had on account thereof. The effect of the judgment of dismissal was; necessarily to dismiss the intervener’s action, the very thing-plaintiff was seeking to have done by his motion. While-denying plaintiff’s motion, the court on its own motion made an order which granted all that plaintiff asked in regard to the intervener.

So far as the disposition of the intervention is. concerned, plaintiff has nothing substantial to complain of. If the court erred in denying his motion, it was error without prejudice. If plaintiff has any ground of complaint whatever, it is that the lower court by its order made on its own motion erroneously prevented him from obtaining a judgment against the defaulting defendants. But, as we have said, he makes no complaint as to this in his briefs. His points relate solely to his rights as against the intervener. None of the points made warrants a reversal. The judgment of dismissal is affirmed.

Shaw, J., and Sloss, J., concurred. Hearing in Bank denied.