Bank of America v. Biren

WHITE, P. J.

Defendant appeals from the judgment for $10,251.69 against him for damages caused plaintiff by his forgery of the names of the payees of certain United States Treasury cheeks paid by plaintiff.

The action was commenced June 16, 1952, and summons issued the same day. Defendant was served with a copy of the summons and complaint on February 18, 1956. The affidavit of service is dated February 20, 1956, and the original summons was filed herein on March 20, 1956. On February 27, 1956, defendant appeared specially and filed a motion to dismiss said action for lack of prosecution under the provisions of section 581a of the Code of Civil Procedure “on two grounds, namely, (1) that the summons herein issued was not served on defendant within three years after the commencement of the said action, and (2) that no return of the service of said summons was duly made and filed within three years of the commencement of said action.” The motion was denied March 23, 1956. April 12, 1956, appellant filed his answer.

Trial was had February 1, 1957. After the first witness on behalf of plaintiff was sworn and before any testimony was introduced, defendant objected to the introduction of evidence and moved to dismiss the action on the ground that the court lacked jurisdiction under the provision of said section 581a, because the summons was not served within three years after the commencement of the action. Said motion was denied and an exception taken by defendant and noted by the court. After trial, judgment was rendered for plaintiff.

The sole question on this appeal is whether the court erred in denying the motion to dismiss the action pursuant to the provisions of said section 581a.

Additional facts contained in the agreed statement on appeal which are pertinent to this question are:

June 5, 1952—Appellant arrived at McNeil Island Penitentiary and Prison Camp in the state of Washington, and was incarcerated therein at all times until September 1,1954.

September 4, 1954—Appellant returned to California and has constantly resided here at all times since that date.

It further appears from affidavits in opposition to said motion that:

March 12, 1954—The Division of Adult Paroles, State of

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