Jacks v. Lewis

California Court of Appeal Oct 26, 1943 No. Civ. 12272Published

Before: Dooling

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Holding. The court held that under section 581a of the Code of Civil Procedure, it is mandatory for a trial court to dismiss an action where a default judgment is not entered within three years after the service of summons, and failure to do so constitutes reversible error on a timely appeal.

Issues

Whether a trial court must dismiss an action if a default judgment is not entered within three years of service of summons under section 581a of the Code of Civil Procedure.
Whether the entry of a default by the clerk within three years satisfies the requirement of entering judgment within three years.

Disposition. reversed

Quotations verified verbatim against the opinion

“it was mandatory on the trial court to dismiss an action where no pleading had been filed by the defendant and judgment had not been entered within three years after service of summons.”

“it is reversible error to enter a default judgment more than three years after summons served in violation of the last paragraph of section 581a, which error will be corrected on a timely appeal from the judgment so entered.”

DOOLING, J. pro tem.

Plaintiff herein filed his complaint against defendant on November 14, 1938. The complaint was based on a promissory note executed by defendant to plaintiff and prayed judgment for principal, interest and attorneys’ fees. Summons was served upon defendant on Novem

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ber 16, 1938, and returned with proof of service on February 24, 1939, and on the same date, defendant having made no appearance in the action, the clerk entered her default.

No judgment on this default was entered until April 16, 1942, considerably more than three years after service of summons. In the meantime on April 9, 1942, acting through her present attorneys, defendant served upon plaintiff a notice of motion to dismiss the action for failure to have judgment entered within three years after service of summons. The motion was noticed for April 28, 1942, and the notice thereof, although served on April 9 was not filed with the clerk until April 17, 1942. We do not consider the date of filing material since the notice was filed in ample time for the hearing as noticed for April 28, but in the meantime as above noted plaintiff procured judgment to be entered on April 16, 1942.

Thereafter on April 23, 1942, defendant served upon plaintiff a notice of motion to set aside the judgment of April 16, 1942, on the ground that it had not been entered within three years after service of summons. This motion was likewise noticed for April 28, 1942. The motion to dismiss, the motion to vacate and a motion to set aside the judgment as void were denied by order of the court on May 29, 1942. On June 11, 1942, defendant filed her notice of appeal from the judgment of April 16, 1942, and from the order of the court of May 29, 1942, denying defendant’s motions.

Thereafter on July 28, 1942, plaintiff was allowed by order of the court to file an amended complaint and on July 29, 1942, an amended judgment was entered thereon. Defendant moved the court to strike the amended complaint and vacate the amended judgment and these motions were denied. Defendant thereupon appealed from this order and the amended judgment.

We are satisfied that the case of

Lynch

Jacks v. Lewis

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