Walker v. State of California

VAN DYKE, P. J.

This is an appeal from a judgment dismissing the action for failure to have summons issued within one year after the filing of the complaint, as required by section 581a of the Code of Civil Procedure.

On July 26, 1951, appellant’s mother commenced this action to recover damages from the state and certain of its officials on the ground that in 1880 the then judge of the Superior Court of Solano County, acting as the agent of the state, fraudulently conspired to, and did, permit her adoption and thereby deprived her of her vested interest in her deceased mother’s estate. Appellant’s mother alleged that at the time of the adoption she was only two years old, that no guardian ad litem was appointed to represent her

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interests and that the required publication of the notice of the proceedings was not made. It was further alleged that the superior court judge, with notice of the vested property rights of appellant’s mother, fraudulently permitted her adoption and thereby deprived her of her heritage in violation of her constitutional rights. Appellant’s mother sought not only damages for the alleged taking of her property without due process of law but also for personal injuries alleged to have been suffered due to the negligence of her adopting parents. Appellant’s mother died July 15, 1952. The summons had not been issued. On October 23, 1953, appellant was appointed the administratrix of her mother’s estate and on October 26, 1953, she was substituted as the plaintiff in the present action. She filed an amended complaint wherein she alleged that, due to circumstances beyond her mother’s control, she had been unable to file the statutory $500 undertaking required in an action against the state; and that up to the filing of the amended complaint appellant herself had suffered the same disability. (Gov. Code, § 16047.) On October 29, 1953, appellant filed the required statutory bond and had summons issued. Service thereof on respondents was completed on November 2, 1953. On November 5, 1953, respondents filed a notice of motion to dismiss on the ground that the summons was not issued within one year after the filing of the complaint. Section 581a of the Code of Civil Procedure provides:

“No action heretofore or hereafter commenced shall be further prosecuted, and no further proceedings shall be had therein, and all actions heretofore or hereafter commenced must be dismissed by the court in which the same shall have been commenced, on its own motion, or on motion of any party interested therein, . . . , unless summons shall have issued within one year, . . . But all such actions may be prosecuted, if appearance has been made by the defendant or defendants, within said three years in the same manner as if summons had been issued and served; ...”