sary walls to protect his property from damage due to the ob struction erected by her in the creek, which she refused to pay. Conceding this to be true and that petitioner was willing, in consideration of the payment of such sum, to forego the fruits of his judgment, neither such fact nor petitioner's motive in legally invoking the aid of the court to enforce a lawful judgment could affect his rights thereunder.

Respondent further claims that since the court had jurisdiction of the matter the making of the order, even though unwarranted, must be deemed mere error committed within the exercise of its jurisdiction, and hence cannot be reviewed in this proceeding. From the very nature of the writ, this is true where the order is based upon a conflict of evidence touching the subject. Where, however, the power to make the order depends upon the existence of facts as to which, as here, there is no evidence whatever, the question presented is one of law and subject to review by direct attack on a writ of certiorari. (Great Western Power Co. v. Pillsbury, 170 Cal. 180, and cases cited.) The record discloses no evidence whatever tending to establish facts upon which the court was warranted in divesting itself of jurisdiction to try the proceeding.

The order is annulled.

We concur:

CONREY, P. J.

JAMES, J.

SHAW, J.

Civil No. 2182. Second Appellate District. July 5, 1918. D. I. MAGEE, Plaintiff and Respondent, v. W. J. BURT MOTOR CAR COMPANY (a Corporation), Defendant and Appellant. [1]

CONTRACT-CONDITIONAL SALE-RIGHT RESERVED TO TAKE POSSESSION-RESALE-CONVERSION-ACCEPTANCE OF PAYMENTS AFTER DEFAULT.-Under a conditional sale contract, where the property has been delivered to the vendee, the vendor reserving the right to demand and have possession of the property at any time before sale and transfer, and the vendor after default in the payments takes possession, and the vendee fails to make a reasonably prompt tender of performance, the vendor can not be held guilty of conversion when he sells the property to another person, nor is the vendor's right to resell the property lost by accepting partial payments from the conditional vendee after the entire contract price became due.

Appeal from the Superior Court of Los Angeles County-C. A. Raker, Judge.

For Appellant-James W. Bell.

For Respondent-Gilbert & Levy; James R. Jaffray. The defendant appeals from the judgment. The record has been prepared under the alternative method. Counsel in their briefs have complied very slackingly with the provisions of section 953c of the Code of Civil Procedure. So far as shown by those portions of the record which are set out in the printed briefs, or stated by counsel on one side and definitely admitted by counsel on

the opposing side, the facts of the case are as hereinafter stated. Matters not so presented will not be discussed.

Respondent brought this action to recover damages for the conversion of a certain automobile. On July 29, 1914, appellant delivered to the respondent the said automobile under a conditional sale agreement, pursuant to which respondent paid appellant $150 and gave to appellant twenty-two promissory notes, the first of which matured one week after that day and the remaining ones at the rate of one each week thereafter until the 30th day of December, 1914. The notes represented weekly payments of $100, except the iast payment, which was to be $80. The first of said notes was as follows: "$100.00.

Los Angeles, Cal., July 29, 1914.

"One week after date, without grace, for value received, I promise to pay to the order of W. J. Burt Motor Car Company one hundred dollars, payable in gold coin of the United States of America, with interest thereon in like gold coin, from date until paid, at the rate of 7% per cent per annum. And in case a suit or action is instituted to collect the money above mentioned, or any portion thereof, I promise to pay ten per cent on the sum first aforesaid, additional to said amount, as attorney's fees, in such suit or action. The above note is given upon and for the consideration that the said W. J. Burt Motor Car Co. have agreed and promised that upon the payment of said note and all other notes outstanding of even date herewith, principal and interest, at maturity (time being the essence of this contract), they will sell and transfer to the undersigned, at the price of said principal and interest, the one white, six cylinder, Auburn touring car, factory number 11539, fully equipped, which said W. J. Burt Motor Car Company have this day entrusted to the care of the undersigned. It is admitted and agreed that said property so entrusted is the property of said W. J. Burt Motor Car Co., and the legal title thereof is in the said W. J. Burt Motor Car Co., and shall remain in them until they shall make the aforesaid sale and transfer after the principal and interest aforesaid shall be paid.

"And the undersigned agrees to return and deliver the said automobile to the said W. J. Burt Motor Car Co., if requested at any time before said sale and transfer, in good order.

"Principal and interest payable in U. S. gold coin at First National Bank, Los Angeles, Cal.

"D. I. MAGEE."

It was stipulated that the note above set forth constituted the entire and only contract between the parties to this acion; which means, presumably, that all of the notes were alike in form.

Respondent paid twelve of these notes, the last of the twelve being paid February 11, 1915, at which time all of the notes were past due. Respondent paid $100 additional in three checks, of which one was dated February 2d and the others February 11, 1915, and by his own admission he still owed $880, with interest. On the 11th day of May, 1915, appellant took possession of the automobile under a claim and delivery action in the superior court

of Los Angeles county, and surrendered in court all the unpaid notes. At the time of retaking the automobile its value was about $800. Appellant paid out and expended in repairs on the automobile the sum of $458, and on the 27th day of December, 1915, sold it for the sum of $1,400. Respondent claimed, and by the judgment herein was awarded, the difference between the unpaid portion of this contract and the amount of the resale, which difference was found to be $429.55.

Appellant contends that upon its taking possession of the automobile, all obligations under the contract between it and the respondent were thereby terminated. The rule relied upon was stated in Pacific Carbonator Co. v. Haydes, 26 Cal. App. 607, to the effect that "A vendor of property which has been delivered to his vendee under a conditional-sale contract has the option in case of default either to recover payments provided to be made under the contract, or to retake the property and put at an end all further obligation on the part of either party." In that case, the vendor did not elect to retake the property, but prosecuted its action to recover the full contract price. It was held that the plaintiff was entitled to recover. The contract in that case differed from the one now before us in this, that the contract there expressly provided that, in the event of default as to any payment agreed to be made by the vendees, repossession of the machinery sold might be had by the vendor, and in that event all payments theretofore made should be deemed to have been payments made for the use of the machinery. In the present case the contract authorizes the vendor to demand and have possession of the property "at any time before said sale and transfer" (independently of any default of the vendee), and provides further that time is of the essence of the contract. "It has been held in this state that where the vendor, in case of a conditional sale, retakes possession pursuant to the terms of the contract, the defaulting vendee may still complete the purchase and perfect his right to receive the property by paying the balance due. (Miller v. Steen, 30 Cal. 407.) This upon the theory that a mere delay in the payment of money. is ordinarily 'capable of exact and entire compensation', and will not, unless time has expressly been made of the essence of the obligation, bar the right of the party in default to tender payment, with interest, at a later date, and demand performance of whatever obligation was due him upon such payment." (Liver v. Mills, 155 Cal. 459, 462.) But even so, in the absence of any reasonably prompt tender of performance by the delinquent purchaser, the vendor cannot be held guilty of conversion when he sells the property to a third person. Nor is the vendor's right to resell the property lost by accepting partial payments from the conditional vendee after the entire contract price became due. In the case at bar the respondent did not pay or offer to pay anything on account of his contract at any time after February, 1915. Appellant obtained possession of the automobile in May, 1915, but did not sell it until the following December. Under the same conditions, and under a very similar contract, it was held that the vendor, in making a resale, acted within his rights.

(Benedict v. Greer-Robbins Co., 26 Cal. App. 468.) [1] So here the plaintiff being in default, and the defendant being the owner of the automobile, and lawfully in possession thereof, the defendant cannot, by reason of making such sale, be held guilty of an unlawful conversion thereof to its own use.

The judgment is reversed.

We concur:

JAMES, J.

WORKS, J. pro tem.

CONREY, P. J.

Civil No. 2418. First Appellate District. July 5, 1918. J. L. RAVN, Plaintiff and Appellant, v. THEODORE PLANZ, Defendant and Respondent.

[1] PRACTICE-FAILURE TO BRING TO TRIAL WITHIN FIVE YEARS AFTER ANSWER-DISMISSAL OF ACTION-MANDATORY.-The provision of section 583 of the Code of Civil Procedure, providing that an action "shall be dismissed on motion of the defendant after notice to the plaintiff, or by the court of its own motion, 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", is mandatory, and the circumstance that the trial of the case was postponed several times without plaintiff's consent is a matter of no significance.

Appeal from the Superior Court of the City and County of San Francisco-Geo. E. Crothers, Judge.

For Appellant-Brewster I. Ames, William A. Nunlist, Frank J. Golden.

For Respondent-Hadsell, Sweet & Ingalls.

This is an appeal from an order dismissing the action because not brought to trial within five years after the defendant filed his answer.

Section 583 of the Code of Civil Procedure provides that an action "shall be dismissed on motion of the defendant after notice to the plaintiff, or by the court of its own motion, 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". This action was not brought to trial within the designated time, and it is not claimed that the parties entered into a stipulation in writing extending the time within which it might be tried. To save this case from the operation of the statute the plaintiff shows that on several occasions the trial of the action was postponed upon the motion of defendant, and that upon a date within about six months prior to the expiration of the five years after the case was at issue, it being then upon the calendar for trial, he appeared in court with his counsel and witnesses ready to proceed, but upon motion of the defendant and over his objection, a further postponement of the trial was granted. Later the case was again called for trial, when a motion to dismiss was made by the defendant and granted.

[1] The provision of section 583 above set forth is mandatory. (Romero v. Snyder, 167 Cal. 216; Larkin v. Superior Court, 171 Cal. 719.) The circumstance, therefore, that the trial of the cause was postponed several times without plaintiff's consent, one of those occasions being a relatively short time before the date when the defendant would be entitled to require the court to dismiss the action, is a matter of no significance. Courts are, of course, loth to deny to a litigant a trial upon the merits; but the section of the Code of Civil Provedure above recited directs in plain terms that it shall be done when a case falls within the conditions stated; and the present is such a case. The trial court had no discretion. The motion being made, its duty was to dismiss. To relax the rule to cover hard cases would be to set at naught the express will of the legislature.

As to the suggestion of counsel for the plaintiff that to construe this statute as mandatory will result in extraordinary anomalies, it may be said that other statutes are subject to the same criticism; many of our statutes, whether relating to procedure or other matters, are not ideal, and often are but compromises, and sometimes work injustice. But in the present case it may be said that 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. As to the hardships suggested by counsel in supposed cases, it is not necessary to consider them at this time. It is sufficient to decide the case presented.

In view of what has been said and of the rule laid down by the supreme court in the cases above referred to, it follows that the portion of the decision of this court in Mazitelli v. Crane, 169 Pac. 721, at variance with the conclusion here arrived at must be deemed overruled.

The order is affirmed.

We concur:

ZOOK, J. pro tem.

BEASLY, J. pro tem.

KERRIGAN, J.

Civil No. 2435. First Appellate District. July 6, 1918. MINNIE E. DONNELLY, Plaintiff and Respondent, v. EDWIN C. WETZEL, EVA L. WETZEL et al., Defendants; EDWIN E. WETZEL and EVA L. WETZEL, Appellants.

OF

[1] PLEADING-SUIT IN PARTITION-PARTIES-JURISDICTION TRIAL COURT TO RENDER PERSONAL JUDGMENT AGAINST CERTAIN DEFENDANTS.—In an action in partition where the complaint alleges that the third named party defendant acquired the property with notice of the plaintiff's claim for $600.00 against the first two named parties defendant on account of an advance by the plaintiff on the purchase price, such first two named parties defendant were proper if not necessary parties to the action, even though they filed a disclaimer of interest in the property and contended they were not proper parties at all to the partition suit on the