I dissent. I cannot agree with the majority’s conclusion that the three-year post-remittitur provision of subdivision (b) of section 583 of the Code of Civil Procedure applies to cases in which a judgment for the defendant, entered upon an order sustaining a demurrer without leave to amend, has been reversed on appeal.
I believe that in enacting section 583, the Legislature intended to establish consistent limiting standards applicable to all cases iii which there has been a lack of diligent prosecution, and did not intend, as the majority *535hold, to establish a five-year limitation period for bringing a cause to trial by the plaintiff in the usual case, while establishing a three-year limitation period in those cases, such as the instant case, where there has been judicial error to the prejudice of the plaintiff.
The majority hold that where a demurrer has been erroneously sustained, the plaintiff has less time to proceed to trial than where a demurrer is properly overruled. To reach this anomalous result, the majority rely on a judicial construction of the term “new trial” found in subdivision (b) of section 583 rather than the clear statutory definition of the term found in section 656 of the Code of Civil Procedure. They so rely although the judicial construction they have selected has been developed in furtherance of the policy that all cases should be disposed of on the merits, rather than, as in the instant case, to frustrate that policy.
Section 583 establishes a comprehensive legislative scheme for the discretionary and mandatory dismissal of actions which have not been diligently prosecuted. Under section 583, if a case has not been brought to trial, the court may dismiss it after two years and must dismiss it after five. The five-year provision was established by the Legislature because it was thought sufficient to afford fair opportunity to bring a cause to trial, “ ‘even though a part of the five-year period must necessarily be consumed in service of process, disposition of demurrers, amendment of pleadings, if necessary, usual and reasonable time consumed in waiting for a place on the court’s calendar or in securing the attendance of a jury and suchlike usual and necessary' proceedings; . . (J. C. Penney Co. v. Superior Court, 52 Cal.2d 666, 670 [343 P.2d 919]; italics added.)
As stated in the concurring opinion of Justice Herndon in Lane v. Davis, 227 Cal.App.2d 60, 65 [38 Cal.Rptr. 425]: “In essence, then, it is clear that the language of section 583 expresses a recognition by the Legislature that, in view of essential and appropriate procedural steps leading to a trial, it would be inadvisable to dismiss an action in less than two years, but that it should be dismissed at the end of five years, unless extended by certain judicially created exceptions, or by stipulation of the parties.”
However, where there has been a trial on the merits and a final judgment which has been reversed on appeal, the plaintiff does not necessarily need five years from the filing of the remittitur to bring his case to trial a second time. Of necessity, all pretrial activities have been completed prior to the first trial on the merits and the plaintiff need only wait for a new trial date after the remittitur. There would be no good reason other than crowded court calendars for not scheduling the second trial promptly.
*536Thus, the Legislature decreed in subdivision (b) of section 583 that a plaintiff shall be allowed three rather than five years in which to retry his case after the filing of the remittitur.1 As stated in St. Louis-San Francisco Ry. Co. v. Superior Court, 276 Cal.App.2d 762, 769 [81 Cal.Rptr. 705]: “The legislative determination that a plaintiff may have five years within which to complete all necessary proceedings prior to the first trial, whereas a new trial after reversal upon appeal must be had more promptly, i.e., within three years, is based upon practical procedural considerations and is a reasonable classification, applicable alike to all litigants.”
This legislative scheme dictates the conclusion that the Legislature never intended that the three-year provision of subdivision (b) of section 583 be applied to cases where there has been no trial on the merits. If it were applied to such cases, the three-year provision would unjustly and unreasonably eliminate a major portion of the plaintiff’s time to complete discovery and all other'necessary pretrial proceedings. Any other application would penalize the plaintiff for a delay beyond his control, something we condemned in General Motors Corp. v. Superior Court, 65 Cal.2d 88, 97 [52 Cal.Rptr. 460, 416 P.2d 492].
Moreover, the crucial term in subdivision (b) is “new trial,” and the majority’s application of this term is clearly contrary to section 656 of the Code of Civil Procedure.
*537Subdivision (b) of section 583 provides in pertinent part: “When in an action after judgment, an appeal has been taken and judgment reversed with cause remanded for a new trial . . . the action must be dismissed by the trial court, on motion of defendant after due notice to plaintiff, or of its own motion, unless brought to trial within three years from the date upon which remittitur is filed by the clerk of the trial court.” (Italics added.)
Section 656 of the Code of Civil Procedure defines a “new trial” as “a re-examination of an issue of fact in the same court after a trial and decision by a jury, court, or referee.” This definition of a “new trial” clearly envisions a second trial on the merits after the resolution of an initial trial on the merits. Under this legislative definition of “new trial,” it is clear that the three-year post-remittitur provision of subdivision (b) of section 583 should apply only when there has been a trial on the merits.
The majority refuse to accept the applicability of this definition of “new trial” to section 583 cases. In rejecting this definition, the majority rely on cases that have defined the term “trial” rather than the term “new trial” and on several cases that have defined the term “new trial” for purposes other than the interpretation of section 583. Although the majority are supported by several Court of Appeal cases (Good v. State of California (1969) 273 Cal.App.2d 587, 589, 591 [78 Cal.Rptr. 316]; Hsu v. City etc. of San Francisco (1966) 240 Cal.App.2d 317, 322 [49 Cal.Rptr. 531]; Lane v. Davis, supra, 227 Cal.App.2d 60; Robertson v. Superior Court (1960) 180 Cal.App.2d 372, 375, 376 [4 Cal.Rptr. 297]; McDonnell v. American Trust Co. (1960) 178 Cal.App.2d 325, 327 [2 Cal.Rptr. 826]), an examination of these cases reveals that the courts in each case merely applied judicial constructions of the terms “trial” and “new trial” developed in inapposite situations. We should disapprove those cases.
As recognized in the majority opinion, the terms “trial” and “new trial” must be defined in the light of the language and purpose of a particular statute and must not be defined in one situation for all purposes. We have repeatedly condemned a mechanical application of the mandatory dismissal provisions of section 583 stating that these provisions “must be applied in light of all the circumstances in the individual case, including the acts and conduct of the parties and the nature of the proceedings themselves.” (General Motors Corp. v. Superior Court, supra, at p. 96; Wolery v. Turkus, 51 Cal.2d 402, 407 [334 P.2d 12]; Nail v. Osterholm, 13 Cal.App.3d 682, 686 [91 Cal.Rptr. 908].) Nevertheless, the majority accept a definition of “new trial” developed for one purpose, and mechanically apply it in a totally foreign situation.
*538Whenever possible, lawsuits should be disposed of on the merits. (General Motors Corp. v. Superior Court, supra, 65 Cal.2d at p. 96.) Thus, we have held that one should be allowed to make a motion for a “new trial” after a judgment entered on an order sustaining a demurrer without leave to amend. (Carney v. Simmonds, 49 Cal.2d 84, 90 [315 P.2d 305].) And we have held that there has been a “trial” in order to avoid a mandatory dismissal under the five-year provision of section 583, where a demurrer has been sustained without leave to amend. (Berri v. Superior Court, 43 Cal.2d 856, 859 [279 P.2d 8].)
In these two situations "we gave expanded and perhaps tortured definitions to the terms “trial” and “new trial” in furtherance of the policy that cases should be decided on the merits. In the instant case, the ordinary definition of the word “trial” and the statutory definition of the term “new trial” further that policy.
Tortured and peculiar definitions of statutory terminology may be warranted to promote justice or to further public policy, but there is no justification to use such definitions when, they will frustrate justice or the policy which gave rise to them. Far from being compelled, as the majority claim, to apply the expanded definition of the term “new trial,” justice and sound public policy compel us to apply the ordinary definition, set forth in section 656 because this definition, in this situation, furthers the policy that all cases should be disposed of on the merits.
As pointed out by Justice Herndon in his concurring opinion in Lane v. Davis, supra, 227 Cal.App.2d at page 67: “In my opinion, the rule that the erroneous sustaining of a demurrer without leave to amend constitutes a ‘trial’ or partial trial sufficient to remove the action from the mandatory five-year limitation, does not necessarily require a holding that it becomes subject to a mandatoiy three-year limitation. In my view, a declaration that it does is both a non sequitur and diametrically opposed to the intent of the Legislature. The plaintiff, in the instant case, has been deprived of the period fixed by the Legislature as a reasonable one within which to bring his case on for trial initially upon its merits after full opportunity allowed to complete correction of pleadings, discovery and other pretrial procedural matters, by the application of a rule developed by the courts to avoid this very situation.”
In construing section 583, the courts should be guided by the principle that cases should be decided on the merits. Thus, the term “trial” in the five-year provision of section 583 should be broadly construed but the term “new trial” should be construed in accordance with the statutory *539definition in section 656. Furthermore, the courts should avoid a mechanical application of the statute which produces the inequitable result reached by the majority.
The plaintiff in the instant case is seeking recovery for a serious injury which involved the amputation of her leg. Yet she has been denied five years to proceed to trial merely because the defendant’s demurrer was erroneously sustained against her. She has demonstrated her diligence in pursuing her appeal, yet she has not been allowed five years to complete those necessary pretrial proceedings, such as the disposition of demurrers, that the Legislature assumed might occupy a five-year period. She has not been allowed five years to complete discovery, although it would have been wasteful, if not erroneous, for her to initiate discovery before the judgment was reversed.
I would hold that the three-year post-remittitur provision of subdivision (b) of section 583 should not operate as a limitation on the five-year mandatory dismissal provision, particularly in cases such as the instant one where there has been no trial on the merits.
I am aware that this ruling, combined with our holding in Berri v. Superior Court, supra, 43 Cal.2d 856, would mean that neither the five-year nor the three-year provisions of subdivision (b) of section 583 would apply to those cases where a demurrer has been erroneously sustained without leave to amend.
However, in cases such as the instant case, the courts may always exercise their inherent powers recognized in a number of cases, to dismiss a case for lack of diligent prosecution, and we need not fear excessive delay in bringing cases to trial. (E.g., Steen v. City of Los Angeles, 31 Cal.2d 542, 546 [190 P.2d 937].) Only through the exercise of the court’s inherent powers in such cases can we be sure of reaching a result that is both just and consistent with the legislative intention.
I would deny mandate.
Tobriner, J., and Mosk, J., concurred.
In August of 1972, the Legislature revised section 583 to provide that the three-year time limit for bringing a case to trial a second time shall not operate as a limitation on the five-year mandatory dismissal provision of the section. (Stats. 1972, ch. 1014, p. 2057.) A plaintiff will therefore have at least five years from the time of the filing of the original complaint to bring his case to a final trial even where he has had one trial on the merits. No plaintiff will be penalized for his initial diligence in bringing his case to an early trial or for judicial error at that trial.
As the majority state in footnote 5, “a material change in the phraseology of a legislative enactment is ordinarily viewed as showing an intention on the part of the Legislature to change the meaning of the statute.” (Twin Lock, Inc. v. Superior Court, 52 Cal.2d 754, 761 [344 P.2d 788].) There is no doubt that this change in the phraseology providing that plaintiffs who have had one trial on the merits shall have five years to bring their case to a final trial amounts to a material change in the meaning of section 583.
The question presented here is whether the change in the phraseology also must be viewed as a material change in the statute as to cases in which there has been no trial on the merits. There is no reason to assume that, when the Legislature has materially revised a statute, it has intended to change every aspect of the statute. Once a material change in the statute has been found arising from the phraseology of the amendment, the rule of construction relied upon by the majority is of no help in determining the scope of the change caused by that phraseology. In this situation, we should hold that, although the change in phraseology has changed the rule applicable where there has been a- trial on the merits, the new phraseology is merely a clarification of the rule where there has been no trial on the merits. (Cf. 45 Cal.Jur.2d, Statutes, § 60, p. 582; Martin v. California Mut. B. & L. Assn., 18 Cal.2d 478, 484 [116 P.2d 71]; Union League Club v. Johnson, 18 Cal.2d 275, 278-279 [115 P.2d 425]; In re Marriage of Paddock, 18 Cal.App.3d 355, 360 [95 Cal.Rptr. 652].)