MILLER & LUX INCORPORATED (a Corporation), Petitioner, v. THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE COUNTY OF MERCED et al., Respondents; MILLER & LUX INCORPORATED (a Corporation), Petitioner, v. THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE COUNTY OF MERCED et al., Respondents; LAS ANIMAS & SAN JOAQUIN LAND COMPANY INCORPORATED (a Corporation), Petitioner, v. THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE COUNTY OF MERCED et al., Respondents, 192 Cal. 333

LENNON, J. Application is made to this court for a writ of mandate directing the Superior Court, in and for the County of Merced, to dismiss three several actions, entitled James J. Stevinson, a Corporation, v. Las Animas and San Joaquin Land Company Incorporated, a Corporation, et ah, No. 2102; James J. Stevinson, a Corporation, v. Miller & Lux Incorporated, a Corporation, et al., No. 2103, and East Side Canal & Irrigation Co., a Corporation, v. Miller & Lux Incorporated, a Corporation, et al., No. 2261. A dismissal is sought in each case, pursuant to the provisions of

section 583 of the Code of Civil Procedure, upon the ground that the actions were not brought to trial within five years after the filing of answers. Succinctly stated, the facts upon which petitioners base their application are these: The first two actions were commenced by the filing of complaints on the twenty-second day of August, 1905, and the third action on April 16, 1908. Answers of all the defendants were filed in the two former cases on February 16, 1907, and the answer of one of the defendants, who was the last to file his answer in the third ease, was filed on October 13, 1909.

The two former cases have, therefore, been at issue for over sixteen years and the third for over fourteen years without being brought to trial. The eases were, however, set for trial shortly after the filing of the several answers last above referred to and thereafter successive written stipulations were entered into between the parties continuing the trial of the cases from time to time.

Among these stipulations were several made in 1907 and 1908, which, after continuing the trial of one of the cases sought to be dismissed to a definite date, further provided that the trial of that case should “follow immediately after the trial of the case of Elizabeth Turner, Administratrix, etc., et ah, v.

East Side Canal & Irrigation Company, No. 2179.” The latter case, hereinafter referred to as the “Turner case,” had been commenced on the twenty-sixth day of September, 1906; had been tried and prosecuted to judgment, and after an appeal taken by both parties to this court the judgment was reversed in part and the case remanded for a new trial upon certain issues. In August, 1919, the last written stipulation was entered into, which continued the trials of all of the eases until March 24, 1920.

On that date all of the parties appeared in court, and the plaintiffs, in the three cases now.sought to be dismissed, were ready with witnesses to proceed to trial. There was on the calendar at that time for trial, in addition to these three cases, the Turner case, which was then ready for a second trial.

The attorney for the plaintiff in the Turner case, who was attorney for the defendants in the three actions herein named, insisted at that time that the Turner case should first be tried, and during the course of the argument said that the pther cases could and should follow the Turner case because of the fact that this was the second trial of that case.

After a hearing of the matter of the setting the causes for trial, the court below made an order reciting that “after some argument in the matter of time of trial of said cause, [the four cases] it is upon stipulation of respective counsel ordered that time for trial of all cases be postponed to April 19, 1920, at 10 o’clock A. M.” On April 19', 1920, the Turner case was continued to May 15, 1920, and an order was made in each of the three cases that they be placed on the calendar for July 6, 1920, to be set for trial.

On that date, upon request of counsel for the defendants in the three cases, who was, as before noted, counsel for the plaintiff in the Turner case, the Turner case was set for trial for September 21, 1920, and the trial of the other three cases was set for September 28, 1920. On September 28, 1920, the trial of the Turner case was in progress, and because of this and the fact that counsel for the respective parties was the same in all of the cases, the trial of any one or all of the cases, save the Turner case, was at that time impracticable.

However, no order was made on that date with regard to the trial of the three cases other than the Turner case, nor was any stipulation then or thereafter entered into for the continuance of the trial of those three cases beyond the date last mentioned. On the 14th of October, 1920, the attorney for the defendant in the three eases verbally notified the attorneys for the plaintiffs that he intended to move to dismiss the actions for want of prosecution. On the following day the plaintiffs served on the defendants a notice of a motion to set the actions for trial.

On October 19, 1920, the court of its own motion and without any stipulation ordered that the time of the trial he postponed to November 15, 1920. On November 10, 1920, the defendants in the three eases gave notice of a motion to dismiss the actions.

This motion was denied by the court on the ground that the request of counsel for the defendants in the three cases to try the Turner case first, and the setting of the other cases on defendants’ motion for September 28, 1920, "constituted, in effect, a continuance at the defendants’ request,” and that the failure to make an order of continuance on September 28, 1920, was immaterial, as the court was then engaged in the trial of the Turner case. That portion of

section 583 of the Code of Civil Procedure pertinent to the facts of the particular case is as follows: “Any action . . . shall be dismissed by the court . . . unless such action is brought to trial within five years after the defendant has filed his answer, except where the parties have stipulated in writing that the time may be extended.” The defendants rest their demand for a dismissal upon the plain provisions of the

section last quoted and insist that, inasmuch as the last written stipulation only extended the time to March 24, 1920, and as the last consent or stipulation in open court only extended the time to September 28, 1920, the cases not having been brought to trial on that date, the lower court had no discretion but to grant the motion for a dismissal. It is, of course, well settled that any stipulation of the defendants extending the statutory period did not operate as a waiver for all future time of the right of defendants to a dismissal after the expiration of the extended period. (Los Angeles v.

Superior Court, 185 Cal. 405 [197 Pac. 79].) Neither did any of the written stipulations entered into within the five-year period continuing the trials from time to time within the statutory period have the effect of extending the time beyond the five-year period. (Larkin v. Superior Court, 171 Cal. 719 [Ann. Cas. 1917D, 670, 154 Pac. 841] ; Rio Vista Min. Co. v.

Superior Court, 187 Cal. 1 [200 Pac. 616].) A written stipulation, however, expressly waiving the benefit of the section, or postponing the case to a time beyond the statutory period, would have the effect of extending the statutory period to the date to which the trial was postponed. (Larkin v. Superior Court, supra.) An examination of the cases construing

section 583, supra, discloses that no case decided by this court has held that anything short of a written stipulation extending in express terms the time of trial to a date beyond the five-year period, or expressly waiving the right to a dismissal under that section, will suffice to toll the running of the statutory time. On the contrary, the cases uniformly hold that the provisions of

section 583 are mandatory and that, in the absence of a written stipulation, any action not brought to trial within the statutory period must be dismissed. (Romero v. Snyder, 167 Cal. 216 [138 Pac. 1002] ; Larkin v. Superior Court, supra; Los Angeles v. Superior Court, supra; Boyd v. Southern Pac. R. Co., 185 Cal. 344 [197 Pac. 58]; Rio Vista Min. Co. v. Superior Court, supra; Ravn v. Planz, 37 Cal. App. 735 [174 Pac. 690]; Andersen v.

Superior Court, 187 Cal. 95 [200 Pac. 963].) Thus it has been held that the death of the attorney for the plaintiff,, with the result that for over four years there was no acting attorney of record, or even the death of the plaintiff himself, cannot affect in any way the defendant’s right to a dismissal of an action falling within the provisions of

section 583. (Larkin v. Superior Court, supra; Andersen v. Superior Court, supra.) And while the actual trial of the case will retain in the court jurisdiction to enter judgment, a mere acquiescence by the defendant in plaintiff’s motion to set a ease for trial, as distinguished from an actual trial of the case, will not suffice. (Rio Vista Min. Co. v. Superior Court, supra; Boyd v. Southern Pac. R.

Co., supra.) Nor will a provision in a written stipulation extending the time within which the action might be brought to trial that at least ninety days’ notice of the time set for trial should be given by the moving party operate to extend the five-year period. (Los Angeles v. Superior Court, supra.) Indeed, in Ravn v. Planz, 37 Cal.

App. 735 [174 Pac. 690], it was held that despite the fact that plaintiff was present in court with witnesses ready to proceed to trial on a date set prior to the expiration of the five-year period and the case was thereupon postponed at the request of the defendant and over the objection of the plaintiff, nevertheless the provisions of

section 583, being mandatory, the trial court had no discretion but to grant the motion to dismiss made by the defendant upon the expiration of the five-year period. And the case of Mazitelli v. Crane, 35 Cal. App. 264 [169 Pac. 721], which had attempted to relax the rigor of the rule that a dismissal is mandatory, upon the ground that the “plaintiff had fully performed his duty . . . when he caused it [the case] to be set for trial and is in court ready to proceed to trial ...” was expressly overruled. (Ravn v. Planz, supra.) The language of the code

section under consideration is simple and direct and expressly provides the means whereby litigants may extend the statutory period. It is argued by plaintiffs that despite the apparently plain import of the language used, specifically providing that an action must be dismissed unless the time for trial be extended by written stipulation of the parties, nevertheless such time may be otherwise extended—that is to say, by words and conduct on the part of the defendants constituting a waiver of their right to dismiss.

And in this behalf it is insisted that the request of the attorney for the defendants in the three actions that the Turner ease, in which he represented the plaintiff, be tried prior to the three actions in which he represented the defendants and his insistence that this case precede the others was conduct sufficient to constitute such an estoppel. While there is language in several of the cases construing

section 583 which seems to recognize the possisibility of a waiver by estoppel, it is to be noted that without exception these cases hold that a written stipulation is required. (Rio Vista Min. Co. v. Superior Court, supra; Los Angeles v. Superior Court, supra; Boyd v. Southern Pac. R. Co., supra; Larkin v. Superior Court, supra; Andersen v. Superior Court, supra.) The statute provides that the time for trial may be extended by written stipulation. It does not provide that it may be extended by a written stipulation “or its equivalent.” And in Larkin v.

Superior Court, supra, it was said that whether or not an oral stipulation in open court entered upon the minutes of the court is the same as a written stipulation and would toll the running of the statute is a “serious question. ’ ’ Obviously, the primary purpose of this

section is to prevent the unlimited postponement of trials. The statute, however, is not altogether arbitrary and inflexible, for it provides that the parties may extend the time by proceeding in a certain definite way. The provision that a written. stipulation be entered into was intended to preclude all disputes, with their attendant charges and countercharges of overreaching and unethical conduct, by a requirement that clear and uncontrovertible evidence be presented to the court that the statutory time was deliberately intended to be extended by both parties.

If it be a “serious question” whether an oral stipulation in open court entered upon the minutes of the court' in terms extending the statutory period and thereby expressly recognizing the fact of defendant’s right to a dismissal and a waiver of such right would suffice to satisfy the requirements of this section, surely it cannot be said that the mere insistence of the counsel for the defendants that the Turner case precede the other three actions did satisfy the requirements of the section.

Such an insistence falls far short of attaining the dignity of an oral stipulation in open court and certainly does not come within the category of written stipulations. The waiver of defendants’ right to dismiss and a consent to an indefinite continuance can only be implied or inferred from such conduct. To hold that this inferential consent is the same as a written stipulation would be to give to this

section a strained construction, which, while it might relieve the harshness of the result in these particular cases, would be to render futile the salutary provisions of this

section intended to secure preciseness of practice and procedure. The very harshness of the rule would seem to be intended to put the plaintiff on the qui vive to secure irrefutable evidence of the defendant’s consent to an extension of the statutory time. It cannot be successfully maintained that the original stipulations, which provided that one of the cases should follow the Turner case, have the continuing effect claimed for them by the plaintiffs.

These stipulations entered into in 1907 and 1908 provided that the trial should be continued to definitely specified dates to follow the Turner case, and no suggestion is made that the case was continued indefinitely to follow the Turner case. Indeed, the conduct of the attorney for the plaintiffs in opposing the action of the attorney for the defendants when he sought to have the Turner case tried first necessarily shows that plaintiffs did not seriously consider the stipulations to have such effect.

One of the chief objections made by the plaintiffs to the issuance of a writ of mandate from this court directing the judge of the court below to enter an order of dismissal is that the question of waiver is a question of fact and that a finding by the lower court that defendants had waived their right to a dismissal is conclusive in this proceeding. The correct rule on this subject is laid down in Andersen v.

Superior Court, 187 Cal. 95 [200 Pac. 963], as follows: “The question to be first presented to this court under a mandamus proceeding would be one of law, as to whether the facts pleaded and passed upon by the trial court constituted' a sufficient ground for denying the motion to dismiss. It cannot be claimed that it is a matter within the discretion of the trial court to arbitrarily determine what extraneous circumstances will excuse a compliance with the statute.” Plaintiffs alsb insist that by being present in court, ready to proceed to trial on March 24, 1920, the cases were “brought to trial” on that date.

The situation in the instant case cannot be distinguished from the situation shown in the case of Ravn v. Planz, supra. In that case, also, the plaintiff was in court with witnesses ready to proceed to trial, but it was nevertheless held that the action having been postponed beyond the five-year period it was mandatory upon the court to order a dismissal. It should be noted that in the Ravn v.

Planz case the court suggested “if the plaintiff, at the time of the last postponement of the trial, had called the court’s attention to the consequence which would flow from it, he could readily have secured an earlier date for the trial or possibly a stipulation from opposing counsel waiving the benefit of the statute.” And in the case of Boyd v. Southern Pac. R. Co., supra, it was said, “the situation in this respect was not called to the court’s attention when the plaintiff’s motion to set the cause was heard, and it may well have been that, if it had been, an earlier date would have been fixed.

The responsibility for calling to the court’s attention the necessity for an early date for trial was on the plaintiff, and since he did not do so, he must be taken to have acquiesced in the date set.” So thus it would appear that all the Ravn v. Planz case decides is that even though a party litigant may be in" court with his witnesses and ready for trial, and even though he object to a continuance, he must, in order to be relieved from any arbitrary action of the trial court, call the court’s attention to the fact that the statutory time for the trial of the case is running against him.

Not only was that not done in the instant case, but it appears that the postponement of the trial of the cases from the date upon which they were set for trial, to wit, March 24, 1920, was had without objection from the plaintiffs. That this is so is made evident by the fact that the record shows an oral stipulation of all of the parties consenting to the continuance.

Doubtless if objection had been made and the trial court’s attention called to the fact that a further continuance would have the effect of putting the case beyond the bar of the statute, the trial court would have ordered that the cases proceed to trial or else have exacted a written stipulation from the defendants extending the time of the trial.

It may be suggested that if counsel had desired to avoid the bar of the statute it would have been a very simple matter, after calling the court’s attention to the situation, to have requested that one witness be sworn in the cases and then the hearing of the cases continued until a time which would be convenient for the court and the parties to the action.

In the situation presented by the record before us in the instant Cases we are not called upon to determine whether a mere calling of the cases for trial on the day originally set for that purpose would be tantamount to bringing the cases to trial, nor need we decide what the rule should be in a situation where it was shown that within a reasonable time before the running of -the statutory time plaintiff in good faith endeavored to have the cause brought to trial and was denied that right by the trial court in the face of the fact that the court’s attention was called to the necessity for an immediate trial of the case. (Boyd v.

Southern Pac. R. Co., supra.) Finally, it is urged that the motion to amend the cross-complaint of the defendant filed in one of the cases was in effect a written stipulation to extend the statutory time. Such a motion has none of the indicia of a stipulation, and, as before pointed out, it is not sufficient that a motion be “in effect” a stipulation. Furthermore, it was held in Larkin v.

Superior Court, supra, that the actual filing of a cross-complaint by the defendant in an action to quiet title, as is the nature of the action in the instant case, did not operate to extend the statutory period, but that the time commenced to run from the filing of the answer. It can scarcely be said, therefore, that a motion to amend a cross-complaint can so operate. Let the writ, issue as prayed for. Waste, J., Kerrigan, J., Lawlor, J., Seawell, J., and Myers, J., concurred. Rehearing denied. All the Justices concurred.