I dissent. The obvious purpose of section 583 of the Code of Civil Procedure is to expedite the disposition of litigation. So far as applicable here the section provides that any "action" shall be dismissed unless it is brought to trial within five years after the defendant has filed his answer. There is no qualification so far as the present matter is concerned. The condition required by the statute has been met and the court, in my opinion, is not warranted in writing an exception into it. The only justification attempted is by declaring that a cross-complaint is in itself an action independent of and apart from the action brought by the plaintiff. The term "action" is defined by the code to be "an ordinary proceeding in a court of justice by which one party prosecutes another", etc. (Sec. 22, Code Civ. Proc.) An "action" is commenced when the complaint is filed. (Sec. 350, Code Civ. Proc.) The cross-complaint is merely a pleading on the part of the defendant (sec. 422, Code Civ. Proc.), and necessarily in the same "action". That a cross-complaint is indisputably and inseparably a part of the "action" is demonstrated by the language of section 422 of the Code of Civil Procedure, which authorized the filing of a cross-complaint. The filing thereof is noted in the register of actions under the same number and as a part of the "action" commenced by the plaintiff. The ordinary acceptation of the meaning of the term "action" as used in section 583 is the sum total of *Page 184 the relief sought by the parties notwithstanding it may contain within itself many causes of action between the parties.
The filing of the answer to the complaint starts the running of the time. This court held in Wutchumna Water Co. v.Stevenson, 204 Cal. 191 [267 P. 537], that the filing of a cross-complaint by the defendant on which issue had not been joined prior to the motion to dismiss did not take the case out of the operation of the discretionary powers of section 583 InSacramento T. Co. v. California Reclam. Co., 205 Cal. 42 [269 P. 640], an order of the trial court dismissing an action under the mandatory provisions of section 583 was affirmed, notwithstanding the fact that the plaintiff's default on the defendant's cross-complaint had been entered. I am unable to distinguish these cases from the case at bar in the essential characteristics. In my opinion the peremptory writ should be granted.
Thompson, J., and Seawell, J., concurred.